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As filed with the Securities and Exchange Commission on October 29, 1998
Registration No. 333-63423
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------
HERCULES INCORPORATED
HERCULES TRUST I
HERCULES TRUST II
HERCULES TRUST III
HERCULES TRUST IV
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS RESPECTIVE CHARTER)
DELAWARE 51-0023450
DELAWARE 51-6510396
DELAWARE 51-6510397
DELAWARE 51-6510398
DELAWARE 51-6510399
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NOS.)
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON, DELAWARE 19894-0001
TELEPHONE: 302-594-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE
OF EACH REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
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Israel J. Floyd, Esquire
Secretary Copy to:
Hercules Incorporated
Hercules Plaza Justin P. Klein, Esquire
1313 North Market Street Ballard Spahr Andrews & Ingersoll, LLP
Wilmington, DE 19894-0001 1735 Market Street, 51st Floor
Telephone: 302-594-5128 Philadelphia, PA 19103
(Agent for service) Telephone: 215-864-8606
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement.
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, please 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. [__]
<PAGE> 2
------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THE WITHIN PROSPECTUS RELATES TO SECURITIES REGISTERED HEREUNDER AND TO
THE UNSOLD DEBT SECURITIES REGISTERED BY HERCULES UNDER REGISTRATION STATEMENT
NO. 333-29225.
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SUBJECT TO COMPLETION, DATED OCTOBER 29, 1998
PROSPECTUS
[HERCULES LOGO]
HERCULES INCORPORATED
HERCULES TRUST I
HERCULES TRUST II
HERCULES TRUST III
HERCULES TRUST IV
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
(302) 594-5000
$3,000,000,000
HERCULES INCORPORATED
Debt Securities
Preferred Stock
Depositary Shares
Common Stock
Purchase Contracts
Purchase Units
Warrants
HERCULES TRUST I, HERCULES TRUST II, HERCULES TRUST III
& HERCULES TRUST IV
Preferred Securities Guaranteed by Hercules Incorporated
Hercules' Common Stock is listed on the New York Stock Exchange under the
ticker symbol "HPC."
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We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest. This prospectus may not be used to sell these securities without a
supplement.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined
that this prospectus is accurate or complete. Any representation to the
contrary is a criminal offense.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any jurisdiction where the offer or sale is not
permitted.
This prospectus is dated ____________________ , 1998.
<PAGE> 4
AVAILABLE INFORMATION
Hercules Incorporated (the "Company" or "Hercules") 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 "SEC"). Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the SEC at
Room 1024, 450 5th Street, N.W., Washington, DC 20549, and at the regional
offices of the SEC, which include: Chicago Regional Office, Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, IL 60661, and 7 World Trade Center,
Suite 1300, New York, NY 10048. Such material can also be inspected and copied
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
NY 10005, on which certain of the Company's securities are listed. Copies can be
obtained from the SEC by mail, at prescribed rates, or from the SEC's internet
website at http://www.sec.gov.
The Company and the Hercules Trusts (as defined herein) have filed with
the SEC a registration statement on Form S-3 (together with all amendments and
exhibits, referred to as the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the securities
offered by this Prospectus. This Prospectus does not contain all of the
information set forth in the Registration Statement and the exhibits thereto. In
addition, certain documents filed by the Company with the SEC have been
incorporated in this Prospectus by reference. See "Incorporation of Certain
Documents by Reference." Statements contained herein concerning the provisions
of any document do not purport to be complete and, in each instance, are
qualified in all respects by reference to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the SEC. Each such
statement is subject to, and qualified in its entirety by, such reference. For
further information with respect to the Company, the Hercules Trusts and the
securities offered hereby, reference is made to the Registration Statement,
including the exhibits thereto, and the documents incorporated herein by
reference.
No separate financial statements of any of the Hercules Trusts have been
included or incorporated by reference herein. The Company and the Hercules
Trusts do not consider that such financial statements would be material to
holders of the Trust Preferred Securities (as defined herein) because (i) all of
the voting securities of each Hercules Trust will be owned, directly or
indirectly, by the Company, a reporting company under the Exchange Act, (ii)
each of the Hercules Trusts is a special purpose entity, has no operating
history, has no independent operations and is not engaged in, and does not
propose to engage in, any activity other than issuing securities representing
undivided beneficial interests in the assets of such Hercules Trust and
investing the proceeds thereof in Junior Subordinated Debentures issued by the
Company and (iii) the Company's obligations described herein and in any
accompanying Prospectus Supplement under the Trust Agreement (as defined herein)
of a Hercules Trust, the Guarantee issued by the Company with respect to the
Trust Preferred Securities issued by such Hercules Trust, the Junior
Subordinated Debentures of the Company purchased by such Hercules Trust and the
Junior Subordinated Debenture Indenture (as defined herein) pursuant to which
such Junior Subordinated Debentures are issued, taken together, constitute
direct obligations of the Company and a full and unconditional guarantee of the
Trust Preferred Securities of each such Hercules Trust. See "The Hercules
Trusts," "Description of the Junior Subordinated Debentures," "Description of
Trust Preferred Securities" and "Description of Guarantees."
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC are incorporated herein by
reference:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(ii) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998 and June 30, 1998;
(iii) The Company's Current Reports on Form 8-K dated July 24,
1998, July 30, 1998 and October 15, 1998; and
(iv) The description of the Company's common stock in its
registration statement filed pursuant to Section 12 of the
Exchange Act, and any amendment or report filed for the
purpose of updating any such description.
All documents filed pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act after the date of this Prospectus and prior to the termination of
the offering of the securities offered pursuant to the applicable Prospectus
Supplement shall be deemed to be incorporated by reference into this Prospectus
and such Prospectus Supplement and to be a part hereof and thereof from the date
of filing of such documents. Any statement contained herein or therein or in a
document incorporated or deemed to be incorporated by reference herein or
therein shall be deemed to be modified or superseded for purposes of this
Prospectus and such Prospectus Supplement to the extent that a statement
contained therein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein and therein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or such Prospectus Supplement.
The Company will provide without charge to each person to whom a copy of
this Prospectus and the applicable Prospectus Supplement is delivered, upon
written or oral request, a copy of any or all of the documents which have been
or may be incorporated by reference in this Prospectus or the applicable
Prospectus Supplement other than exhibits to such documents (unless exhibits are
specifically incorporated by reference in such documents). Requests should be
directed to: Israel J. Floyd, Esquire, Corporate Secretary, Hercules
Incorporated, Hercules Plaza, 1313 North Market Street, Wilmington, Delaware
19894-0001 (telephone: 302-594-5128; facsimile: 302-594-7252; Internet e-mail:
[email protected]).
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THE COMPANY
Hercules operates, both domestically and throughout the world, in two
industry segments: Chemical Specialties and Food & Functional Products. The
Chemical Specialties segment manufactures, markets and sells such products as
wet-strength resins and sizings to improve the properties of paper; resins for
inks and adhesives; and polypropylene fibers and textile yarns used in
disposable hygiene products and home furnishings. Major worldwide manufacturing
locations include Brunswick, Georgia; Franklin, Virginia; Jefferson,
Pennsylvania; Middelburg, the Netherlands; Milwaukee, Wisconsin; Paulinia,
Brazil; Portland, Oregon; Savannah, Georgia; and Zwijndrecht, the Netherlands.
The Food & Functional Products segment manufactures, markets and sells
natural food gums for the food industry and water-soluble polymers used as
thickeners and stabilizers in paints, personal care products, rubber and
coatings. Major worldwide manufacturing locations include Alizay, France; Doel,
Belgium; Hopewell, Virginia; Kenedy, Texas; Lille Skensved, Denmark; and Parlin,
New Jersey.
As of December 31, 1997, Hercules had 6,221 employees worldwide.
Approximately 3,600 were located in the United States.
ACQUISITION OF BETZDEARBORN
On July 30, 1998, Hercules entered into an agreement to acquire
BetzDearborn Inc. ("BetzDearborn"). The acquisition was approved by the
BetzDearborn shareholders on October 8, 1998, and the one-step cash merger
transaction was consummated on October 15, 1998. The purchase price was
approximately $2.4 billion in cash, and Hercules' assumption of approximately
$700 million in BetzDearborn debt.
BetzDearborn is engaged in the engineered specialty chemical treatment of
water and industrial process systems, operating in a wide variety of industrial
and commercial applications with particular emphasis on the chemical, petroleum
refining, paper, food processing, automotive, steel and power industries.
BetzDearborn develops, produces and markets a wide range of specialty chemical
products, and provides the technical expertise necessary to utilize these
products effectively. Chemical treatment programs are developed for use in
boilers, cooling systems, heat exchangers, paper and petroleum process streams
and both influent and effluent systems. BetzDearborn monitors changing water,
process and plant operating conditions so as to prescribe the appropriate
treatment programs to solve problems such as corrosion, scale, deposit formation
and a variety of process problems.
The merged enterprise will be a global specialty chemical company with a
premier paper chemical business that will operate under the Hercules name and
be headquartered in Wilmington, Delaware. The BetzDearborn water and industrial
process treatment businesses, excluding paper process, will continue to operate
under the BetzDearborn name. Other portions of the BetzDearborn business will
be integrated into Hercules' Pulp and Paper business unit.
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The financial statements of BetzDearborn for each of the three years in
the period ended December 31, 1997 and for the six-month periods ended June 30,
1998 and 1997, respectively, and the Unaudited Pro Forma Condensed Combined
Financial Statements of the Company, assuming consummation of the
acquisition of BetzDearborn as of January 1, 1997, for the year ended December
31, 1997 and the six-month period ended June 30, 1998, are incorporated by
reference herein from the Company's Current Report on Form 8-K dated October
15, 1998.
THE HERCULES TRUSTS
Each of Hercules Trust I, Hercules Trust II, Hercules Trust III and
Hercules Trust IV (collectively, the "Hercules Trusts") is a statutory business
trust created under Delaware law pursuant to (i) a trust agreement (each, as
amended from time to time, a "Trust Agreement") executed by the Company as
sponsor for such Hercules Trust (the "Sponsor") and by the initial trustees of
such Hercules Trust and (ii) the filing of a certificate of trust with the
Delaware Secretary of State on September 14, 1998. Each Hercules Trust exists
for the exclusive purposes of (i) issuing and selling preferred securities
representing undivided beneficial interests in the assets of such Hercules Trust
(the "Trust Preferred Securities") and common securities representing undivided
beneficial interests in the assets of such Hercules Trust (the "Trust Common
Securities" and, together with the Trust Preferred Securities, the "Trust
Securities"), (ii) using the proceeds from the sale of such Trust Securities to
acquire the related Junior Subordinated Debentures (as defined herein) of the
Company and (iii) engaging in only those other activities necessary, advisable
or incidental thereto. The Company's Junior Subordinated Debentures will be the
sole assets of each Hercules Trust and, accordingly, payments under the related
Junior Subordinated Debentures will be the sole revenues of such Hercules Trust.
All of the Trust Common Securities of each Hercules Trust will be owned by the
Company (the "Trust Common Securities Holder") and will rank pari passu, and
payments will be made thereon pro rata, with the Trust Preferred Securities of
such Hercules Trust, except that upon the occurrence and continuance of an Event
of Default (as defined herein) under the applicable Trust Agreement resulting
from an Event of Default under the Junior Subordinated Debenture Indenture (as
defined herein), the rights of the Company as the Trust Common Securities Holder
to payments in respect of distributions and payments upon liquidation,
redemption or otherwise will be subordinated to the rights of the holders of
Trust Preferred Securities of such Hercules Trust. See "Description of Trust
Preferred Securities--Subordination of Trust Common Securities." The Company
will acquire Trust Common Securities of each Hercules Trust in an aggregate
Liquidation Amount (as defined in the applicable Trust Agreement) equal to at
least 3% of the total capital of such Hercules Trust. Each Hercules Trust has a
term of 35 years, but may dissolve earlier as provided in the applicable Trust
Agreement.
Each Hercules Trust's business and affairs are conducted by trustees (the
"Issuer Trustees") who are appointed by the Company as the Trust Common
Securities Holder. Unless otherwise specified in the applicable Prospectus
Supplement, the Issuer Trustees for each Hercules Trust will be The Chase
Manhattan Bank, as Property Trustee (the "Property Trustee"), Chase Manhattan
Bank Delaware, as Delaware Trustee (the "Delaware Trustee"), and three
individual trustees (the "Administrative Trustees") who are officers or other
employees of the Company. The Chase Manhattan Bank, as Property Trustee, will
act as sole indenture trustee under each Trust Agreement. The Chase Manhattan
Bank will also act as indenture trustee under the Guarantees and the Junior
Subordinated Debenture Indenture. See "Description of Guarantees" and
"Description of Debt Securities--Description of Junior Subordinated Debentures."
The Trust Common Securities Holder of a Hercules Trust or, if an Event of
Default under the applicable Trust Agreement has occurred and is continuing, the
holders of a majority in Liquidation Amount of the Trust Preferred Securities of
such Hercules Trust will be entitled to appoint, remove or replace such Hercules
Trust's Property Trustee and/or the Delaware Trustee. In no event will the
holders of Trust Preferred Securities have the right to vote to appoint, remove
or replace the Administrative Trustees; such voting rights will be vested
exclusively in
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the Company as the Trust Common Securities Holder. The duties and obligations of
each Issuer Trustee will be governed by the applicable Trust Agreement.
The Company, as issuer of the Junior Subordinated Debentures, will pay all
fees, expenses, debts and obligations (other than payments in respect of Trust
Securities) related to the Hercules Trusts and the offering of the Trust
Preferred Securities and will pay, directly or indirectly, all ongoing costs,
expenses and liabilities of the Hercules Trusts (other than payments in respect
of Trust Securities).
The principal executive office of each Hercules Trust is c/o Hercules
Incorporated, Hercules Plaza, 1313 North Market Street, Wilmington, Delaware
19894-0001.
USE OF PROCEEDS
Unless otherwise indicated in a supplement or supplements to this
Prospectus (a "Prospectus Supplement"), the net proceeds received by the Company
from the sale of the Offered Securities (as defined herein) are expected to be
used for general corporate purposes, which may include repayment of indebtedness
to be incurred to finance the Company's proposed acquisition of BetzDearborn.
The proceeds from the sale of Trust Preferred Securities by the Hercules Trusts
will be invested in the Junior Subordinated Debentures of the Company. Except as
may otherwise be described in the Prospectus Supplement relating to such Trust
Preferred Securities, the Company expects to use the net proceeds from the sale
of such Junior Subordinated Debentures to the Hercules Trusts for general
corporate purposes. Any specific allocation of the proceeds to a particular
purpose that has been made at the date of any Prospectus Supplement will be
described therein.
RATIO OF EARNINGS TO FIXED CHARGES
The following are the Company's consolidated ratios of earnings to fixed
charges for each of the periods indicated:
<TABLE>
<CAPTION>
Six Months
Ended Years Ended December 31,
June 30, 1998 -------------------------------------
(unaudited) 1997 1996 1995 1994 1993
----------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings
to fixed charges(1) 5x 10x 10x 12x 9x 6x
</TABLE>
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(1) The ratio of earnings to combined fixed charges and preferred stock
dividends for the identified periods are identical to the ratios of earnings to
fixed charges in the table because the Company had no issued and outstanding
preferred stock in any of such periods.
For the purpose of determining earnings in the calculation of the ratio of
earnings to fixed charges, consolidated pre-tax income has been adjusted to
reflect the distributed income of less than 50 percent owned subsidiaries,
increased by the amount of previously capitalized interest amortized during the
period, and increased by the amount of fixed charges, excluding capitalized
interest expense. Fixed charges consist of interest expense on borrowings
(including capitalized interest) and one-third (the proportion deemed
representative of the interest portion) of rent expense.
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DESCRIPTION OF THE SECURITIES TO BE OFFERED
Hercules may offer and sell from time to time (i) its unsecured senior
debt securities ("Senior Debt Securities") or unsecured subordinated debt
securities ("Subordinated Debt Securities"), consisting of debentures, notes or
other evidences of indebtedness, or its unsecured junior subordinated debentures
("Junior Subordinated Debentures"), (ii) shares of its common stock, without par
value ($25/48 stated value) (the "Common Stock"), (iii) shares of its series
preferred stock, without par value (the "Preferred Stock"), which may be
represented by depositary shares ("Depositary Shares"), (iv) warrants to
purchase Senior Debt Securities, Subordinated Debt Securities, Junior
Subordinated Debentures, Common Stock, Preferred Stock or Depositary Shares (the
"Warrants"), (v) purchase contracts ("Purchase Contracts") to purchase any of
Senior Debt Securities, Subordinated Debt Securities, Junior Subordinated
Debentures, Common Stock, Preferred Stock, Depositary Shares, Warrants and Trust
Preferred Securities (collectively, the "Purchase Contract Securities") or (vi)
purchase units ("Purchase Units"), each representing ownership of a Purchase
Contract and any of (x) Senior Debt Securities, Subordinated Debt Securities or
Junior Subordinated Debentures, (y) debt obligations of third parties, including
U.S. Treasury Securities, or (z) Trust Preferred Securities of a Hercules Trust,
securing the holder's obligation to purchase the applicable Purchase Contract
Securities under the Purchase Contract. Such securities may be offered in one or
more separate classes or series, in amounts, at prices and on terms to be
determined by market conditions at the time of sale and to be set forth in a
Prospectus Supplement. Such securities may be sold for U.S. dollars, foreign
denominated currency or currency units. Amounts payable with respect to any such
securities may likewise be payable in U.S. dollars, foreign denominated currency
or currency units.
Each of the Hercules Trusts may offer and sell, from time to time, its
Trust Preferred Securities. The payment of periodic cash distributions
("distributions") with respect to Trust Preferred Securities of each of the
Hercules Trusts out of monies held by the Property Trustee of each of the
Hercules Trusts and payments on liquidation of each Hercules Trust and on
redemption of the Trust Preferred Securities of such Hercules Trust will be
guaranteed by the Company as and to the extent described herein (each, a
"Guarantee"). See "Description of Guarantees." The Company's obligation under
each Guarantee will be an unsecured obligation of the Company and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Company, including the Senior Debt Securities, the Subordinated Debt Securities
and the Junior Subordinated Debentures, except those liabilities made pari passu
or subordinate by their terms, and (ii) senior to all capital stock now or
hereafter issued by the Company and to any guarantee now or hereafter entered
into by the Company in respect of any of its capital stock. Junior Subordinated
Debentures may be issued and sold from time to time in one or more series by the
Company to a Hercules Trust or a trustee of such Hercules Trust in connection
with the investment of the proceeds from the offering of Trust Preferred
Securities and Trust Common Securities of such Hercules Trust. The Junior
Subordinated Debentures purchased by a Hercules Trust may be subsequently
distributed pro rata to holders of Trust Preferred Securities and Trust Common
Securities under certain circumstances described herein and in an accompanying
Prospectus Supplement.
The Senior Debt Securities, Subordinated Debt Securities, Junior
Subordinated Debentures, Common Stock, Preferred Stock, Depositary Shares,
Warrants, Purchase Contracts, Purchase Units and Trust Preferred Securities
described herein are collectively referred to as the "Offered Securities." The
Offered Securities may be offered in amounts, at prices and on terms to be
determined at the time of offering; provided, however, that the aggregate
initial public offering price of the Offered Securities will be limited to
$3,000,000,000. Specific terms of the Offered Securities will be set forth in an
accompanying Prospectus Supplement or Supplements, together with the terms of
the offering of the Offered Securities and the net proceeds from the sale
thereof.
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DESCRIPTION OF DEBT SECURITIES
DESCRIPTION OF THE SENIOR DEBT SECURITIES AND SUBORDINATED DEBT SECURITIES
The Company's Senior Debt Securities and Subordinated Debt Securities
(collectively, for purposes of this section of the Prospectus, the "Debt
Securities"), consisting of notes, debentures or other evidences of
indebtedness, may be issued from time to time in one or more series, in the case
of Senior Debt Securities, under a Senior Debt Indenture (the "Senior Debt
Indenture") between the Company and The Chase Manhattan Bank, as Trustee, and in
the case of Subordinated Debt Securities, under a Subordinated Debt Indenture
(the "Subordinated Debt Indenture") between the Company and The Chase Manhattan
Bank, as Trustee. The Senior Debt Indenture and the Subordinated Debt Indenture
are sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." The Chase Manhattan Bank, in its capacity as
trustee under either or both of the Indentures, is referred to hereinafter as
the "Trustee."
Each of the Indentures has been qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and is subject to, and governed
by, the Trust Indenture Act. The form of master Indentures are included as
exhibits to the Registration Statement of which this Prospectus is a part. The
following description summarizes the material terms of the Indentures and the
Debt Securities and is qualified in its entirety by reference to the detailed
provisions of the Debt Securities and the applicable Indenture, which contains
the full text of such provisions and other information regarding the Debt
Securities, including the definitions of certain terms used in this Prospectus,
and those terms made a part of each of the Indentures by the Trust Indenture
Act. Wherever particular sections or defined terms of the applicable Indenture
are referred to, such sections or defined terms are incorporated herein by
reference as part of the statement made, and the statement is qualified in its
entirety by such reference.
The Indentures are substantially identical except for provisions relating
to subordination. Any Debt Securities offered by this Prospectus and any
accompanying Prospectus Supplement are referred to herein as the "Offered Debt
Securities."
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provide that Debt Securities may be
issued from time to time in one or more series and may be denominated and
payable in U.S. dollars, foreign currencies or units based on or related to
foreign currencies.
The specific terms of a series of Offered Debt Securities will be
established in or pursuant to a resolution of the Board of Directors of the
Company (a "Board Resolution") or in one or more indentures supplemental to an
Indenture (each, an "Indenture Supplement"). Pursuant to the Indentures, the
Company can establish different rights with respect to each series of Debt
Securities issued under such Indentures, including, pursuant to an Indenture
Supplement, different covenants and events of default.
The applicable Prospectus Supplement will provide information regarding
the specific terms of the Offered Debt Securities, including: (i) the
classification as senior or subordinated Debt Securities and the specific title
and designation, aggregate principal amount (including any limit thereon),
purchase price and denominations of such Offered Debt Securities; (ii) currency
or units based on or relating to currencies in which principal of, premium, if
any, on and/or any interest on such Offered Debt Securities will or may be
payable; (iii) the date or dates on which the principal of such Offered Debt
Securities is payable or the
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method of determining the same, if applicable; (iv) the rate or rates (which may
be fixed or variable) at which such Offered Debt Securities will bear interest,
if any, or the method of determining the same, if applicable; (v) the date or
dates from which such interest, if any, shall accrue or the method of
determining the same, if applicable, the interest payment dates, if any, on
which interest will be payable or the manner of determining the same, if
applicable, and the record dates for the determination of holders to whom
interest is payable on such Offered Debt Securities; (vi) the place or places
where the principal of and premium, if any, on and interest on the Offered Debt
Securities will be payable; (vii) any redemption, repayment or sinking fund
provisions; (viii) whether such Offered Debt Securities are convertible into or
exchangeable for Common Stock or other securities or rights of the Company or
other issuers and, if so, the applicable conversion or exchange terms and
conditions; (ix) whether the Offered Debt Securities will be issuable in
registered form ("Registered Debt Securities") or bearer form ("Bearer Debt
Securities") or both and, if Bearer Debt Securities are issuable, any
restrictions applicable to the place of payment of any principal of and premium,
if any, on and interest on such Bearer Debt Securities, to the exchange of one
form for another and to the offer, sale and delivery of such Bearer Debt
Securities (except that under current United States federal income tax law,
Registered Debt Securities will not be exchangeable into Bearer Debt
Securities); (x) any applicable material United States federal income tax
consequences, including those related to Debt Securities issued at a discount
below their stated principal amount; (xi) the proposed listing, if any, of the
Offered Debt Securities on any securities exchange; and (xii) any other specific
terms pertaining to the Offered Debt Securities, whether in addition to, or
modification or deletion of, the terms described herein.
Unless otherwise specified in a Prospectus Supplement, Registered Debt
Securities shall be issued only in denominations of U.S. $1,000 and any integral
multiple thereof.
Debt Securities will bear interest, if any, at a fixed rate or a floating
rate. Debt Securities bearing no interest or interest at a rate that at the time
of issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
relevant Prospectus Supplement.
REGISTRATION AND TRANSFER
Debt Securities may be presented for exchange and Registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions described in the applicable Prospectus Supplement.
Such services will be provided without charge, other than any tax or other
governmental charge payable in connection therewith, but subject to the
limitations described in the applicable Prospectus Supplement. Bearer Debt
Securities and the related coupons, if any, will be transferable by delivery.
GLOBAL DEBT SECURITIES
Registered Debt Securities of a series may be issued in the form of one or
more global securities (a "Global Security") that will be deposited with, or on
behalf of, a depositary (a "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
denominations 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 for
Registered 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
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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.
Bearer Debt Securities of a series may also be issued in the form of one
or more Global Securities (a "Bearer Global Security") that will be deposited
with a Depositary for Euroclear System and Cedel Bank, S.A., or with a nominee
for such Depositary identified in the Prospectus Supplement relating to such
series. The specific terms and procedures, including the specific terms of the
depositary arrangement and any specific procedures for the issuance of Debt
Securities in definitive form in exchange for a Bearer Global Security, with
respect to any portion of a series of Debt Securities to be represented by a
Bearer Global Security will be described in the Prospectus Supplement relating
to such series.
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. However,
except for Offered Debt Securities issued in foreign currencies, unless
otherwise specified in the applicable Prospectus Supplement, The Depository
Trust Company ("DTC") will be the Depositary and the following depositary
arrangements will apply.
DTC has advised the Company that DTC is a limited-purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC was created to hold securities for its
participating organizations (collectively, the "Participants") and to facilitate
the clearance and settlement of transactions in those securities between
Participants through electronic book-entry changes in accounts of its
Participants, thereby eliminating the need for physical movement of
certificates. The Participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. Access
to DTC's system is also available to other entities such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (collectively,
the "Indirect Participants"). Persons who are not Participants may beneficially
own securities held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interest and transfer of ownership interest
of each actual purchaser of each security held by or on behalf of DTC are
recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Company that, pursuant to procedures established
by it, (i) upon deposit of a Global Security representing Debt Securities, DTC
will credit the accounts of the designated Participants with the applicable
portions of the principal amount of such Debt Securities and (ii) ownership of
beneficial interests in a Global Security representing Debt Securities will be
shown on, and the transfer of ownership thereof will be effected only through,
records maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other owners of
beneficial interests).
Investors in a Global Security representing Debt Securities may hold their
interests therein directly through DTC if they are Indirect Participants or
indirectly through organizations that are Indirect Participants. All beneficial
interests in a Global Security representing Debt Securities will be subject to
the procedures and requirements of DTC. The laws of some states require that
certain persons take physical delivery of securities that they own in definitive
form. Consequently, the ability to transfer beneficial interests in a Global
Security representing Debt Securities to such persons will be limited to that
extent. Because DTC can act only on behalf of Participants, which in turn act on
behalf of Indirect Participants and certain banks, the ability of a person
having beneficial interests in a Global Security representing Debt Securities to
pledge such interests to persons or entities that do not participate in the DTC
system, or otherwise take actions in respect of such interests, may be affected
by the lack of a physical certificate evidencing such interests.
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Payments in respect of a Global Security representing Debt Securities
will be payable in same-day funds by the Trustee to Cede & Co. as nominee of
DTC in its capacity as the holder thereof under the applicable Indenture. Under
the terms of each Indenture, the Trustee will treat the persons in whose names
the Debt Securities, including a Global Security representing Debt Securities,
are registered as the owners thereof for the purpose of receiving such payments
and for any and all other purposes whatsoever. Consequently, neither the
Trustee nor any agent thereof has or will have any responsibility or liability
for (i) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of beneficial
interests in a Global Security representing Debt Securities, or for
maintaining, supervising or reviewing any of DTC's records or any Participant's
or Indirect Participant's records relating to the beneficial interests in a
Global Security representing Debt Securities or (ii) any other matter relating
to the actions and practices of DTC or any of its Participants or Indirect
Participants. DTC has advised the Company that its current practice, upon
receipt of any payment in respect of securities, such as a Global Security
representing Debt Securities, is to credit the accounts of the relevant
Participants with the payment on the payment date, in amounts proportionate to
their respective holdings in principal amount of beneficial interests in the
relevant security as shown on the records of DTC unless DTC has reason to
believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the owners of beneficial
interests in a Global Security representing Debt Securities will be governed by
standing instructions and customary practices and will be the responsibility of
the Participants or the Indirect Participants and will not be the
responsibility of DTC, the Trustee or the Company. Neither of the Company nor
the Trustee will be liable for any delay by DTC or any of its Participants in
identifying the owners of beneficial interests in a Global Security
representing Debt Securities, and the Company and the Trustee may conclusively
rely on and will be protected in relying on instructions from DTC or its
nominee for all purposes.
Beneficial interests in a Global Security representing Debt Securities
will trade in DTC's Same-Day Funds Settlement System and secondary market
trading activity in such interests will therefore settle in immediately
available funds, subject in all cases to the rules and procedures of DTC, the
Participants and the Indirect Participants.
Conveyance of notices and other communications by DTC to Participants, by
Participants to Indirect Participants and by Participants and Indirect
Participants to beneficial owners, and vice versa, will be governed by
arrangements among them, subject to statutory or regulatory requirements as may
be in effect from time to time. Neither the Company nor the Trustee will have
any responsibility or liability with respect thereto.
Prior to any redemption of Debt Securities covered by a Global Security,
the Company will provide DTC with notices of redemption containing all
information required by DTC's rules and procedures. Such notices will be
provided to DTC for distribution to Participants within the time periods
established by DTC. If less than the entire principal amount of Debt Securities
of a series represented by a Global Security is to be redeemed, DTC's practice
is to determine by lot the amount of the interest of each Participant to be
redeemed.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Debt Securities only at the direction of one or more
Participants to whose account with DTC interests in a Global Security
representing Debt Securities are credited and only in respect of such portion of
the principal amount of the Debt Securities as to which such Participant or
Participants has or have given such direction.
The foregoing information concerning DTC and its book-entry system has
been obtained from sources that the Company and the Trustee believe to be
reliable, but neither the Company nor the Trustee takes responsibility for the
accuracy thereof.
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Although DTC has agreed to the foregoing procedures to facilitate
transfers of beneficial interests in a Global Security representing Debt
Securities among Participants in DTC, it is under no obligation to follow or to
continue to follow such procedures, and such procedures may be discontinued at
any time. Neither the Company nor the Trustee will have any responsibility for
the performance by DTC, the Participants or the Indirect Participants of their
respective obligations under the rules and procedures governing DTC's
operations.
Under the applicable Indenture, a Global Security representing Debt
Securities will be exchangeable for Debt Securities in definitive form if (i)
DTC (x) notifies the Company that it is unwilling or unable to continue as
depositary therefor or (y) has ceased to be a clearing agency registered under
the Exchange Act, and the Company thereupon fails to appoint a successor
depositary within 90 days, (ii) the Company in its sole discretion elects to
cause the issuance of its Debt Securities in definitive form or (iii) there
shall have occurred and be continuing an Event of Default under the applicable
Indenture or any event which after notice or lapse of time or both would be an
Event of Default under such Indenture.
RANKING
Senior Debt Securities. Payment of the principal of and premium, if any,
on and interest on Debt Securities issued under the Senior Debt Indenture will
rank pari passu with all other unsecured and unsubordinated debt of the Company.
Subordinated Debt Securities. Payment of the principal of and premium, if
any, on and interest on Debt Securities issued under the Subordinated Debt
Indenture will be subordinate and junior in right of payment, to the extent and
in the manner set forth in the Subordinated Debt Indenture, to all "Senior
Indebtedness" of the Company as defined in the Subordinated Debt Indenture (the
"Senior Indebtedness As Defined In the Subordinated Debt Indenture"). The Senior
Indebtedness As Defined In the Subordinated Debt Indenture is (i) the principal
of and premium, if any, on and interest on all of the Company's indebtedness for
money borrowed, other than the Subordinated Debt Securities, whether outstanding
on the date of execution of the Subordinated Debt Indenture or thereafter
created, assumed or incurred, except such indebtedness as is by its terms
expressly stated to be pari passu or subordinate in right of payment to the
Subordinated Debt Securities, (ii) any amounts payable under swap transactions
and (iii) any deferrals, renewals or extensions of the indebtedness referred to
in clause (i) or (ii) above. The term "indebtedness for money borrowed" as used
in the foregoing sentence shall include, without limitation, any obligation of,
or any obligation guaranteed by, the Company for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets (excluding trade payables arising in the ordinary course
of business). Notwithstanding anything to the contrary in the Subordinated Debt
Indenture or the Subordinated Debt Securities, Senior Indebtedness As Defined In
the Subordinated Debt Indenture shall not include (i) any indebtedness of the
Company which, by its terms or the terms of the instrument creating or
evidencing it, is subordinate in right of payment to or pari passu with the
Subordinated Debt Securities or (ii) any indebtedness of the Company to a
subsidiary of the Company. As of June 30, 1998, the aggregate principal amount
of the Senior Indebtedness As Defined In the Subordinated Debt Indenture was
approximately
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$948,813,000. The Subordinated Debt Indenture does not contain any limitation on
the amount of Senior Indebtedness As Defined In the Subordinated Debt Indenture
that can be incurred by the Company. Indebtedness to be issued pursuant to the
Junior Subordinated Debenture Indenture between the Company and The Chase
Manhattan Bank, as Debenture Trustee, providing for the issuance of Junior
Subordinated Debentures of the Company, is subordinate in right of payment to
the Subordinated Debt Securities.
In the event (i) of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or its property, or (ii) that Subordinated Debt
Securities of any series are declared due and payable before their expressed
maturity because of the occurrence of an Event of Default under the Subordinated
Debt Indenture (under circumstances other than as set forth in clause (i)
above), then the holders of all Senior Indebtedness As Defined In the
Subordinated Debt Indenture shall first be entitled to receive payment of the
full amount due thereon, before the holders of any of such Subordinated Debt
Securities or related coupons are entitled to receive a payment on account of
the principal of and premium, if any, on or interest on such Subordinated Debt
Securities. In the event and during the continuation of any default in payment
of any Senior Indebtedness As Defined In the Subordinated Debt Indenture or if
any event of default shall exist under any Senior Indebtedness As Defined In the
Subordinated Debt Indenture, no payment of the principal or interest on the
Subordinated Debt Securities or related coupons shall be made.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and premium, if any, on and interest on the Debt Securities will
be made at the office of the Trustee in the City of New York or at the office of
such Paying Agent or Paying Agents as the Company may designate from time to
time, except that at the option of the Company, payment of any interest may be
made, except in the case of a Global Security representing Debt Securities, by
(i) check mailed to the address of the Person entitled thereto as such address
shall appear in the applicable Securities Register or (ii) transfer to an
account maintained by the Person entitled thereto as specified in such
Securities Register, provided that proper transfer instructions have been
received by the relevant record date. Payment of any interest on any Debt
Securities will be made to the Person in whose name such Debt Securities are
registered at the close of business on the record date for such interest, except
in the case of defaulted interest. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent;
provided, however, the Company will at all times be required to maintain a
Paying Agent in each place of payment for the Debt Securities.
Any moneys deposited with the Trustee or any Paying Agent, or then held by
the Company in trust, for the payment of the principal of and premium, if any,
on or interest on any Debt Securities and remaining unclaimed for two years
after such principal and premium, if any, or interest has become due and payable
shall, at the request of the Company, be repaid to the Company and the holder of
such Debt Securities shall thereafter look, as a general unsecured creditor,
only to the Company for payment thereof.
CONVERSION RIGHTS
The terms and conditions, if any, on which Offered Debt Securities are
convertible into or exchangeable for Common Stock or other securities of the
Company or other issuers will be set forth in the Prospectus Supplement relating
thereto. Such terms will include the conversion or exchange price, the
conversion or exchange date(s) or period(s), provisions as to whether conversion
or exchange will be at the option of the holder or the Company, the events
requiring an adjustment of the conversion or exchange price
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CONSOLIDATION, MERGER OR SALE OF ASSETS
The Company shall not consolidate with or merge into any other Person or
sell, convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to any Person, and no Person shall consolidate with or merge into
the Company, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to the Company, unless: (i) in case the
Company consolidates with or merges into another Person or sells, conveys or
transfers its properties and assets as an entirety or substantially as an
entirety to any Person, the successor Person is organized and existing under the
laws of the United States or any State thereof or the District of Columbia, and
such successor Person expressly assumes all of the Company's obligations on the
applicable Debt Securities and any coupons and under the applicable Indenture;
(ii) immediately prior to and after giving effect thereto, no Event of Default
under the applicable Indenture, and no event which, after notice or lapse of
time or both, would become such an Event of Default, shall have occurred and be
continuing; and (iii) certain other conditions under the applicable Indenture
are met. Accordingly, any such consolidation, merger or transfer of assets as an
entirety or substantially as an entirety which meets the conditions described
above would not create any Event of Default which would entitle holders of the
Debt Securities, or the Trustee on their behalf, to take any of the actions
described below under the caption "--Events of Default."
CERTAIN COVENANTS OF THE COMPANY
Restrictions on Creation of Secured Debt. The Company covenants that, so
long as any of the Debt Securities remain outstanding, it will not, nor will it
permit any Restricted Subsidiary (as defined below), to issue, assume or
guarantee any debt for money borrowed (herein referred to as "Debt") if such
Debt is secured by a mortgage, security interest, pledge, lien or other
encumbrance (any of such are hereinafter referred to as a "lien") on any
Principal Property (as defined below), or on any shares of stock or indebtedness
of any Restricted Subsidiary (whether such Principal Property, shares of stock
or indebtedness are now owned or acquired after the date of the Indentures),
without, in any such case, effectively providing concurrently with the issuance,
assumption of or guarantee of any such Debt that the Debt Securities (together
with, if the Company shall so determine, any other indebtedness of or guarantee
by the Company or such Restricted Subsidiary ranking equally with the
Debt Securities issued under the applicable Indenture and then existing or
thereafter created) shall be secured equally and ratably with such Debt. This
restriction, however, shall not apply to Debt secured by liens: (i) on
property, shares of stock or indebtedness of any corporation existing at the
time such corporation becomes a Restricted Subsidiary; (ii) on property
existing at the time that it is acquired or to secure Debt incurred for the
purpose of financing the purchase price of such property or improvements or
construction on the property, which Debt is incurred prior to or within one
year after the later of such acquisition, completion of such construction, or
the commencement of commercial operation of such property; provided, however,
that in the case of any such acquisition, construction or improvement the lien
shall not apply to any property theretofore owned by the Company or a
Restricted Subsidiary, other than, in the case of any such construction or
improvement, any theretofore unimproved real improvement, on which the property
is constructed, or the improvement is located; (iii) securing Debt owed by any
Restricted Subsidiary to the Company or another Restricted Subsidiary; (iv) on
property of a corporation existing at the time such corporation is merged into
or consolidated with the Company or a Restricted Subsidiary or at the time of a
sale, lease or other disposition of the properties of a corporation as an
entirety or substantially as an entirety to the Company or a Restricted
Subsidiary; (v) paramount to all other liens on advance, partial or progress
payments pursuant to contracts with U.S. federal and state governments for
production, research or development, or on any material or supplies in
connection with the performance of such contracts in order to secure such
payments to such governments; and liens on equipment, tools, machinery, land or
buildings constructed or purchased by the Company or a Restricted Subsidiary
primarily for the purpose of manufacturing a product, or performing any
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<PAGE> 17
research or development work for such governments to secure indebtedness
incurred and owing to such governments for the construction, installation or
purchase of such equipment, tools, machinery, land and buildings (including
liens incurred in connection with pollution control, industrial revenue or
similar financings); (vi) existing at the date of the Indentures; or (vii) on
particular property (or any proceeds of the sale thereof) to secure all or any
part of the cost of exploration, drilling, mining or development thereof
(including construction of facilities for field processing of minerals) intended
to obtain or materially increase the production and sale or other disposition of
oil, gas, coal, uranium, copper or other minerals therefrom, or any indebtedness
created, issued, assumed or guaranteed to provide funds for any or all such
purposes; or (viii) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien referred
to in the foregoing clauses (i) through (vii) inclusive; provided, however, that
the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or replacement
and that such extension, renewal or replacement shall be limited to all or a
part of the property which secured the lien so extended, renewed or replaced
(plus improvements on such property).
Notwithstanding the above, the Company and one or more Restricted
Subsidiaries may, without securing the Debt Securities, issue, assume or
guarantee secured Debt which would otherwise be subject to the foregoing
restrictions, provided that the aggregate amount of Debt secured by a lien then
outstanding (not including secured Debt permitted under the foregoing
exceptions) does not exceed 5% of the consolidated stockholders' equity of the
Company as of the end of the last preceding year.
For the purposes of the foregoing covenant, the following types of
transactions shall not be deemed to create Debt secured by a lien: the sale or
other transfer of (i) oil, gas, coal, uranium, copper or other minerals in place
for a period of time until, or in an amount such that, the purchaser will
realize therefrom a specified amount of money (however determined) or a specific
amount of such minerals; or (ii) any other interest in property of the character
commonly referred to as a "production payment."
Restrictions of Sale and Leaseback Transactions. Sale and leaseback
transactions by the Company or any Restricted Subsidiary of any Principal
Property are prohibited (except for a temporary lease for a term of not more
than three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries) unless (i) the Company or such
Restricted Subsidiary would be entitled to issue, assume or guarantee Debt
secured by a lien upon the property involved at least equal to the Attributable
Debt (defined below) in respect of such transaction without equally and ratably
securing the Debt Securities, provided that such Attributable Debt shall then be
deemed for all purposes under the Indentures and the provisions of this covenant
to be Debt subject to the covenant described above under "-- Restrictions on
Creation of Secured Debt," or (ii) an amount in cash equal to such Attributable
Debt is applied to the retirement of Debt then having a maturity of more than
one year.
Certain Definitions.
"Attributable Debt" means the present value (discounted as provided in the
Indentures) of the obligation of a lessee for rental payments during the
remaining term of any lease.
"Consolidated Net Tangible Assets" means as of any particular time the
aggregate amount of assets after deducting therefrom (a) all current liabilities
and (b) all goodwill, patents, copyrights, trademarks, tradenames, unamortized
debt discount and expense and other like intangibles, all as shown in the most
recent consolidated financial statements of the Company and its Subsidiaries
prepared in accordance with generally accepted accounting principles.
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"Principal Property" means any manufacturing plant or other facility of
the Company or any Restricted Subsidiary, whether owned as of the date of the
Indentures or acquired thereafter, which is located within the continental
United States and, in the opinion of the Board of Directors or an officer
designated by the Board of Directors, is of material importance to the total
business conducted by the Company and its Restricted Subsidiaries taken as a
whole.
"Restricted Subsidiary" means any Subsidiary all the property of which is
located within the continental United States, which owns a Principal
Property or in which the Company's investment, whether in the form of equity or
debt, is in excess of 10% of the Consolidated Net Tangible Assets of the Company
as of the end of the fiscal year preceding the date of determination, provided,
however, that the term "Restricted Subsidiary" shall not include any Subsidiary
principally engaged in financing exports from or operations outside the
continental United States.
EVENTS OF DEFAULT
An "Event of Default" is defined under each Indenture with respect to Debt
Securities of any series issued under such Indenture as being:
(i) default in payment of all or any part of the principal of or
premium, if any, on any Debt Securities of such series when due, whether
at maturity, upon any redemption, by declaration of acceleration of
maturity or otherwise; or
(ii) default for 30 days in payment of any interest on or any
additional amounts payable with respect to any Debt Securities of such
series when due; or
(iii) default in payment of any sinking fund installment when due
by the terms of the Debt Securities of such series; or
(iv) default for 90 days after written notice as provided in such
Indenture in the performance or breach of any covenant or agreement
of the Company in the Debt Securities of such series or such Indenture
other than a covenant or agreement included in such Indenture solely for
the benefit of a series of Debt Securities other than such series; or
(v) certain events of bankruptcy, insolvency or reorganization; or
(vi) any other events of default made applicable to the Debt
Securities of such series.
Each Indenture provides that, for each series of Debt Securities, if an
Event of Default other than an Event of Default referred to in clause (v) above
shall have occurred and be continuing, either the Trustee or the holders of not
less than 25% in principal amount of the Debt Securities of such series then
outstanding may then declare the principal of or, if any of the Debt Securities
of the series are original issue discount, such portion of the principal amount
of such Debt Securities as may be specified in the terms thereof, and any
accrued interest on all Debt Securities of such series then outstanding to be
due and payable immediately, which shall then result in the acceleration of
such series of Debt Securities. If an Event of Default referred to in clause
(v) above shall have occurred and be continuing, then the principal of and
accrued interest on all Debt Securities of any series shall ipso facto become
and be due and payable immediately without any declaration or other act on the
part of the Trustee or any holder thereof. The holders of a majority in
aggregate outstanding principal amount of the Debt Securities of any series may
annul a declaration of acceleration of maturity and waive any default in
respect of such Debt Securities if such default (other than the non-payment of
the principal and interest of the Debt Securities of such series which has
become due solely by such acceleration) has been cured and a sum sufficient to
pay all matured installments
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of interest (and premium, if any) and principal due otherwise than by
acceleration has been deposited with the Trustee.
Each Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during a default to act with the required standard of care,
to be indemnified by the holders of Debt Securities issued under such Indenture
requesting the Trustee to exercise any right or power under such Indenture
before proceeding to exercise any such right or power at the request of such
holders. Subject to such provisions in each Indenture for the indemnification of
the Trustee and certain other limitations, the holders of a majority in
principal amount of the outstanding Debt Securities of each series may, in
respect of such series of Debt Securities, direct the time, method and place of
conducting any proceedings for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee.
Each Indenture provides that no holder of Debt Securities issued under
such Indenture may institute any action against the Company under such Indenture
(except actions for payment of overdue principal, premium, if any, or interest
or for the conversion or exchange of such Debt Securities in accordance with
their terms) unless such holder previously shall have given to the Trustee
written notice of default and continuance thereof and unless the holders of not
less than 25% in principal amount of the Debt Securities of the applicable
series shall have requested the Trustee to institute such action and shall have
offered the Trustee reasonable indemnity, the Trustee shall not have instituted
such action within 60 days of such request and the Trustee shall not have
received any direction inconsistent with such written request by the holders of
a majority in principal amount of the Debt Securities of such series.
Each Indenture contains a covenant that the Company will file annually
with the Trustee a certificate of no default or a certificate specifying any
default that exists.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company can discharge or defease its obligations under each Indenture
as set forth below.
Under terms satisfactory to the Trustee, the Company may discharge certain
obligations to holders of any series of Debt Securities issued under such
Indentures which have not already been delivered to the Trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee cash or Government Obligations (as
defined in such Indenture), as trust funds in an amount certified to be
sufficient to pay when due, whether at maturity, upon redemption or otherwise,
the principal of and premium, if any, on and interest on such Debt Securities.
The Company may also discharge any and all of its obligations to holders
of any series of Debt Securities issued under an Indenture at any time
("defeasance"), but may not thereby avoid its duty to register the transfer or
exchange of such series of Debt Securities, to replace any temporary, mutilated,
destroyed, lost or stolen series of Debt Securities or to maintain an office or
agency in respect of such series of Debt Securities. Under terms satisfactory to
the Trustee, the Company also may be released with respect to any outstanding
series of Debt Securities issued under the relevant Indenture from the
obligations imposed by certain provisions of such Indenture (including covenants
described above limiting consolidations, mergers, and certain dispositions) and
omit to comply with such provisions without creating an Event of Default
("covenant defeasance"). Defeasance or covenant defeasance may be effected only
if, among other things: (i) the Company irrevocably deposits with the Trustee
cash or Government Obligations, as trust funds in an amount certified to be
sufficient to pay at maturity (or upon redemption) the principal of and premium,
if any, on and interest on all outstanding Debt Securities of such series issued
under such Indenture; (ii) the
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Company delivers to the Trustee an opinion of counsel to the effect that the
holders of such series of Debt Securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of such
defeasance or covenant defeasance and that defeasance or covenant defeasance
will not otherwise alter such holders' United States federal income tax
treatment of principal, premium and interest payments on such series of Debt
Securities (it being understood that in the case of a defeasance such opinion
must be based on a ruling of the Internal Revenue Service or a change in United
States federal income tax law occurring after the date of such Indenture, since
such a result would not occur under current tax law); (iii) no Event of Default
or any event which after notice or lapse of time or both would be an Event of
Default has occurred; (iv) such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, the
Indenture or any other material agreement or instrument to which the Company is
a party or by which it is bound; (v) certain other provisions set forth in the
Indenture are met; (vi) the Company shall have delivered to the Trustee an
Officers' Certificate and an opinion of counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance have been complied
with; and (vii) in the case of the Subordinated Debt Indenture no event or
condition shall exist that, pursuant to certain provisions described under
"--Ranking--Subordinated Debt Securities" would prevent the Company from making
payments of principal of and premium, if any, on and interest on the
Subordinated Debt Securities at the date of the irrevocable deposit referred to
above.
MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee may enter into
Indenture Supplements without the consent of the holders of Debt Securities to:
(i) secure the Debt Securities, (ii) evidence the assumption by a successor
corporation of the obligations of the Company, (iii) add covenants or Events of
Default for the protection of the holders of all or any series of Debt
Securities, or surrender rights or powers of the Company, (iv) cure any
ambiguity or correct any inconsistency in such Indenture, provided that such
cure or correction does not adversely affect the holders of such Debt
Securities, (v) establish the forms or terms of Debt Securities of any series
and any related coupons, (vi) evidence the acceptance of appointment by a
successor trustee, (vii) make provisions with respect to the conversion or
exchange terms and conditions applicable to the Debt Securities of any series,
(viii) add to or change any provisions related to bearer securities, (ix) add
to, delete from or revise the conditions, limitations or restrictions on issue,
authentication and delivery of Debt Securities, (x) supplement any provisions
to permit or facilitate the defeasance and discharge of any series and (xi)
change or eliminate any provisions of the Indenture, provided that any such
change or elimination shall become effective only when there are no Debt
Securities outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benfit of such provision.
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of Debt Securities of all series issued under such
Indenture then outstanding and affected (voting as one class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the holders of the Debt
Securities of each series so affected; provided that the Company and the
Trustee may not, without the consent of the holder of each outstanding Debt
Security affected thereby, (i) extend the stated maturity of the principal of,
or premium, if any, or interest on, or any additional amounts with respect to
any Debt Security, or reduce the principal amount thereof or the rate (or
change the manner of calculating the rate) or extend the time of payment of
interest thereon or any additional amounts, or change any of the conversion,
exchange or redemption provisions thereof or change the currency in which the
principal of (including any amount in respect of original issue discount),
premium, if any, on or interest on any Debt Security is payable or reduce the
amount of principal of any original issue discount Debt Security that is
payable upon acceleration or provable in bankruptcy or alter provisions of such
Indenture relating to the Debt Securities issued thereunder not denominated in
U.S. dollars or impair the right to institute suit for the enforcement of any
payment on any Debt Security when due or for the conversion or exchange of any
Debt Security in accordance with its terms or (ii) reduce the aforesaid
percentage in principal amount of Debt Securities of any series issued under
such Indenture the consent of the holders of which is required for any such
modification.
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without the
consent of each holder of Senior Indebtedness As Defined In the Subordinated
Debt Indenture then outstanding that would be adversely affected thereby.
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GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of Delaware.
INFORMATION CONCERNING THE TRUSTEE
The Chase Manhattan Bank is one of a number of banks with which the
Company and its subsidiaries maintain ordinary banking and trust relationships
and is also the Debenture Trustee under the Junior Subordinated Debenture
Indenture.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
GENERAL
The Junior Subordinated Debentures will be issued in one or more series
under a Junior Subordinated Debenture Indenture, as supplemented from time to
time (as so supplemented, the "Junior Subordinated Debenture Indenture"),
between the Company and The Chase Manhattan Bank as the Debenture Trustee. The
Junior Subordinated Debenture Indenture has been qualified under the Trust
Indenture Act and is subject to, and governed by, the Trust Indenture Act and is
included as an exhibit to the Registration Statement of which this Prospectus is
a part. This summary of certain terms and provisions of the Junior Subordinated
Debentures and the Junior Subordinated Debenture Indenture does not purport to
be complete and is subject to, and is qualified in its entirety by reference to,
all of the provisions of such Junior Subordinated Debentures and the Junior
Subordinated Debenture Indenture, including the definitions therein of certain
terms, and those terms made a part of the Junior Subordinated Debenture
Indenture by the Trust Indenture Act.
The applicable Prospectus Supplement will describe the specific terms of
the Junior Subordinated Debentures offered thereby, including: (i) the specific
title and designation, aggregate principal amount (including any limit thereon),
purchase price and denominations of such Junior Subordinated Debentures; (ii)
the date or dates on which the principal of such Junior Subordinated Debentures
is payable or the method of determining the same, if applicable; (iii) the rate
or rates (which may be fixed or variable) at which such Junior Subordinated
Debentures will bear interest, if any, or the method of determining the same, if
applicable; (iv) the date or dates from which such interest, if any, shall
accrue or the method of determining the same, if applicable, the interest
payment dates, if any, on which interest will be payable or the manner of
determining the same, if applicable, and the record dates for the determination
of holders to whom interest is payable on such Junior Subordinated Debentures;
(v) the duration of the maximum consecutive period that the Company may elect to
defer payments of interest on such Junior Subordinated Debentures; (vi) any
redemption, repayment or sinking fund provisions; (vii) whether such Junior
Subordinated Debentures are convertible into or exchangeable for Common Stock or
other securities or rights of the Company or other issuers, or a combination of
the foregoing, and, if so, the applicable conversion or exchange terms and
conditions; (viii) any applicable material United States federal income tax
consequences; and (ix) any other specific terms pertaining to such Junior
Subordinated Debentures, whether in addition to, or modification or deletion of,
the terms described herein.
RANKING
Each series of Junior Subordinated Debentures will rank pari passu with
all other Junior Subordinated Debentures (collectively, the "Other Debentures")
to be issued by the Company and sold to other trusts or other entities to be
established by the Company that are similar to the Hercules Trusts
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(collectively, the "Other Hercules Trusts") and will be unsecured and will rank
subordinate and junior in right of payment, to the extent and in the manner set
forth in the Junior Subordinated Debenture Indenture to all Senior Indebtedness
of the Company as defined in the Junior Subordinated Debenture Indenture (the
"Senior Indebtedness As Defined In the Junior Subordinated Debenture
Indenture"). The Junior Subordinated Debenture Indenture will not limit the
amount of secured or unsecured debt, including Senior Indebtedness As Defined In
the Junior Subordinated Debenture Indenture, that may be incurred by the Company
or its subsidiaries. See "--Subordination." As of June 30, 1998, the aggregate
principal amount of the Senior Indebtedness As Defined In the Junior
Subordinated Debenture Indenture was approximately $1,031,813,000.
FORM, REGISTRATION AND TRANSFER
The Junior Subordinated Debentures will be issued in fully registered
form. Until any dissolution of the applicable Hercules Trust, the Junior
Subordinated Debentures will be held in the name of the Property Trustee in
trust for the benefit of the holders of the related Trust Securities. If the
Junior Subordinated Debentures are distributed to the holders of the related
Trust Securities, the Junior Subordinated Debentures will be issued to such
holders in the same form as the Trust Securities were held. Accordingly, any
depositary arrangements for such Junior Subordinated Debentures are expected to
be substantially similar to those in effect for the Trust Preferred Securities.
See "Description of Trust Preferred Securities -- Global Trust Preferred
Securities."
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and premium, if any, on and interest on the Junior Subordinated
Debentures will be made at the office of the Debenture Trustee in the City of
New York or at the office of such Paying Agent or Paying Agents as the Company
may designate from time to time, except that at the option of the Company
payment of any interest may be made, except in the case of a global certificate
representing Junior Subordinated Debentures, by (i) check mailed to the address
of the Person entitled thereto as such address shall appear in the applicable
Securities Register for Junior Subordinated Debentures or (ii) transfer to an
account maintained by the Person entitled thereto as specified in such
Securities Register, provided that proper transfer instructions have been
received by the relevant record date. Payment of any interest on any Junior
Subordinated Debenture will be made to the Person in whose name such Junior
Subordinated Debenture is registered at the close of business on the record date
for such interest, except in the case of defaulted interest. The Company may at
any time designate additional Paying Agents or rescind the designation of any
Paying Agent; provided, however, the Company will at all times be required to
maintain a Paying Agent in each place of payment for the Junior Subordinated
Debentures.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or
then held by the Company in trust, for the payment of the principal of and
premium, if any, on or interest on any Junior Subordinated Debentures and
remaining unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall, at the request of the Company, be
repaid to the Company and the holder of such Junior Subordinated Debentures
shall thereafter look, as a general unsecured creditor, only to the Company for
payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no Debenture Event of Default has occurred and is continuing,
the Company will have the right under the Junior Subordinated Debenture
Indenture to defer the payment of interest on the Junior Subordinated Debentures
at any time or from time to time up to the maximum period specified in the
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applicable Prospectus Supplement for the deferral of interest (each deferral
period being referred to herein as an "Extension Period"), provided that an
Extension Period must end on an interest payment date and may not extend beyond
the stated maturity of such Junior Subordinated Debentures. At the end of an
Extension Period, the Company must pay all interest then accrued and unpaid
(together with interest thereon, to the extent permitted by applicable law).
During an Extension Period, interest will continue to accrue and holders of
Junior Subordinated Debentures (and holders of the related Trust Securities
while such Trust Securities are outstanding) will be required to accrue such
deferred interest income for United States federal income tax purposes prior to
the receipt of cash attributable to such income, regardless of the method of
accounting used by the Holders.
Prior to the termination of any Extension Period, the Company may extend
such Extension Period, provided that such extension does not cause such
Extension Period to exceed the maximum Extension Period, end on a date other
than an interest payment date or extend beyond the stated maturity of the
related Junior Subordinated Debentures. Upon the termination of any Extension
Period (or any extension thereof) and the payment of all amounts then due, the
Company may begin a new Extension Period, subject to the foregoing limitations.
No interest shall be due and payable during an Extension Period except at the
end thereof. The Company must give the Debenture Trustee notice of its election
to begin or extend an Extension Period at least five Business Days prior to the
earlier of (i) the date cash distributions on the related Trust Securities would
have been payable except for the election to begin or extend such Extension
Period or (ii) the date the applicable Hercules Trust is required to give notice
to any securities exchange or to holders of its Trust Preferred Securities of
the record date or the date cash distributions are payable, but in any event not
less than five Business Days prior to such record date. The Debenture Trustee
shall give notice of the Company's election to begin or extend an Extension
Period to the holders of the Trust Preferred Securities. Subject to the
foregoing limitations, there is no limitation on the number of times that the
Company may begin or extend an Extension Period.
RESTRICTIONS ON CERTAIN PAYMENTS
The Company will also covenant that if at any time (i) there shall have
occurred any event of which the Company has actual knowledge that is, or with
the giving of notice or the lapse of time, or both, would be, a Debenture Event
of Default, (ii) the Company shall be in default with respect to any of its
payment obligations under the Guarantee or (iii) the Company shall have given
notice of its election to exercise its right to begin or extend an Extension
Period as provided in the Junior Subordinated Debenture Indenture and shall not
have rescinded such notice, and such Extension Period, or any extension thereof,
shall have commenced and be continuing, then it will not (1) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock or (2)
make any payment of principal of or premium, if any, on or interest on or repay
or repurchase or redeem any debt securities of the Company (including Other
Debentures) that rank pari passu with or junior in right of payment to the
Junior Subordinated Debentures or (3) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any subsidiary of the
Company (including under Other Guarantees (as defined herein)) if such guarantee
ranks pari passu or junior in right of payment to the Junior Subordinated
Debentures (other than (a) dividends or distributions in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Common Stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the applicable Guarantee, (d) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock, (e) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
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exchanged, and (f) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees or any of the Company's dividend reinvestment plans).
So long as the Trust Securities remain outstanding, the Company also will
covenant (i) to maintain 100% direct or indirect ownership of the related Trust
Common Securities (it being understood that any permitted successor of the
Company under the Junior Subordinated Debenture Indenture may succeed to the
Company's ownership of such Trust Common Securities), (ii) to use its best
efforts to cause each Hercules Trust (a) to remain a business trust, except in
connection with the distribution of Junior Subordinated Debentures to the
holders of related Trust Securities in liquidation of such Hercules Trust, the
conversion, exchange or redemption of all of such Trust Securities, or certain
mergers, consolidations or amalgamations, each as permitted by the applicable
Trust Agreement, and (b) to otherwise continue to be classified as a grantor
trust for United States federal income tax purposes, (iii) to use its best
efforts to cause each holder of its Trust Securities to be treated as owning an
undivided beneficial interest in the related Junior Subordinated Debentures and
(iv) not to cause, as Sponsor of the Hercules Trusts, or to permit, as the Trust
Common Securities Holder, the dissolution, liquidation or winding-up of any
Hercules Trust, except as provided in the applicable Trust Agreement.
MODIFICATION OF JUNIOR SUBORDINATED DEBENTURE INDENTURE
From time to time, the Company and the Debenture Trustee may, without the
consent of the holders of the Junior Subordinated Debentures, amend, waive or
supplement the Junior Subordinated Debenture Indenture for specified purposes,
including, among other things, curing ambiguities or adding provisions (provided
that any such action does not materially adversely affect the interests of the
holders of the Junior Subordinated Debentures) and maintaining the qualification
of the Junior Subordinated Debenture Indenture under the Trust Indenture Act.
The Junior Subordinated Debenture Indenture will permit the Company and the
Debenture Trustee, with the consent of the holders of a majority in principal
amount of all outstanding Junior Subordinated Debentures affected thereby, to
modify the Junior Subordinated Debenture Indenture in a manner affecting the
rights of the holders of Junior Subordinated Debentures; provided, however, that
no such modification may, without the consent of the holder of each outstanding
Junior Subordinated Debenture so affected, (i) change the stated maturity or
reduce the principal of any such Junior Subordinated Debentures, (ii) change the
interest rate (or the manner of calculation of the interest rate) or extend the
time of payment of interest on any such Junior Subordinated Debentures except
pursuant to the Company's right under the Junior Subordinated Debenture
Indenture to defer the payment of interest as provided therein (see "--Option to
Extend Interest Payment Date"), (iii) change any of the conversion, exchange or
redemption provisions applicable to any such Junior Subordinated Debentures,
(iv) change the currency in respect of which payments of principal of or any
premium or interest on any such Junior Subordinated Debentures are to be made,
(v) change the right of holders of Trust Securities to bring a Direct Action in
respect of any required payments or conversion or exchange rights, (vi) impair
or affect the right of any holder of any such Junior Subordinated Debentures to
institute suit for the payment of the principal thereof or premium, if any, or
interest thereon or for the conversion or exchange of any such Junior
Subordinated Debentures in accordance with their terms, (vii) change the
subordination provisions adversely to the holders of the Junior Subordinated
Debentures, or (viii) reduce the percentage of principal amount of Junior
Subordinated Debentures the holders of which are required to consent to any such
modification of the Junior Subordinated Debenture Indenture.
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DEBENTURE EVENTS OF DEFAULT
The following described events with respect to any series of Junior
Subordinated Debentures will constitute a "Debenture Event of Default" (whatever
the reason for such Debenture Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) unless such event is specifically deleted
or modified in or pursuant to the supplemental indenture, Board Resolution or
Officers' Certificate establishing the terms of such series pursuant to the
Junior Subordinated Debenture Indenture:
(i) failure for 30 days to pay any interest on that series of Junior
Subordinated Debentures when due (subject to any permitted deferral
thereof); provided that, during any Extension Period for such series of
Junior Subordinated Debentures, failure to pay interest on such series of
Junior Subordinated Debentures shall not constitute a Debenture Event of
Default; or
(ii) failure to pay any principal of or premium, if any, on that
series of Junior Subordinated Debentures when due, whether at
maturity, upon any redemption, by declaration of acceleration of maturity
or otherwise; or
(iii) if applicable, failure by the Company to deliver the required
securities or other rights upon an appropriate conversion or exchange
election by holders of that series of Junior Subordinated Debentures or
the related Trust Preferred Securities; or
(iv) failure to observe or perform any other agreement or covenant
contained in the Junior Subordinated Debenture Indenture in respect of
that series of Junior Subordinated Debentures for 90 days after written
notice to the Company from the Debenture Trustee or the holders of at
least 25% in aggregate outstanding principal amount of that series of
Junior Subordinated Debentures; or
(v) certain events in bankruptcy, insolvency or reorganization of
the Company.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures of any series have, subject to certain
exceptions, the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee in respect of such
Junior Subordinated Debentures. The Debenture Trustee or the holders of at least
25% in aggregate outstanding principal amount of the Junior Subordinated
Debentures of any series may declare the principal of and any accrued interest
on such Junior Subordinated Debentures due and payable immediately upon a
Debenture Event of Default, other than a Debenture Event of Default referred to
in clause (v) above, which shall result in the immediate acceleration of the
Junior Subordinated Debentures. The holders of a majority in aggregate
outstanding principal amount of the Junior Subordinated Debentures of any series
may annul such declaration and waive the default in respect of such Junior
Subordinated Debentures if the default (other than the non-payment of the
principal and interest of the Junior Subordinated Debentures which has become
due solely by such acceleration) has been cured and a sum sufficient to pay all
matured installments of interest (and premium, if any) and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures of any series may, on behalf of the holders of
all of the Junior Subordinated Debentures of such series, waive any past
default, except a default in the payment of the principal of or premium, if any,
on or interest on (unless such default has been cured and a sum sufficient to
pay all matured installments of interest (and premium, if any) and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or
a default in respect of a covenant or provision which under the Junior
Subordinated Debenture Indenture cannot be modified or amended without the
consent of the holder of each outstanding Junior Subordinated Debenture of such
series.
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ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
To the extent any action under the Junior Subordinated Debenture Indenture
is entitled to be taken by the holders of at least a specified percentage of
Junior Subordinated Debentures, holders of the corresponding Trust Preferred
Securities may take such action if such action is not taken by the Property
Trustee of the related Hercules Trust. Notwithstanding the foregoing, if a
Debenture Event of Default has occurred and is continuing and is attributable
either to (i) the failure of the Company to pay the principal of or premium, if
any, on or interest on the Junior Subordinated Debentures on the due date or
(ii) the failure by the Company to deliver the required securities or other
rights upon an appropriate conversion or exchange right election, a holder of
the related Trust Preferred Securities may institute a legal proceeding
directly against the Company for enforcement of payment to such holder of the
principal of or premium, if any, on or interest on such Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Preferred Securities held by such holder or for enforcement of such
conversion or exchange rights, as the case may be (a "Direct Action"). The
Company may not amend the Junior Subordinated Debenture Indenture to remove the
foregoing right to bring a Direct Action without the prior written consent of
the holders of all of the Trust Preferred Securities outstanding. If the right
to bring a Direct Action is removed, the applicable Hercules Trust may become
subject to the reporting obligations under the Exchange Act. Notwithstanding
any payments made to a holder of Trust Preferred Securities by the Company in
connection with a Direct Action, the Company shall remain obligated to pay the
principal of and premium, if any, on and interest on the related Junior
Subordinated Debentures, and the Company shall be subrogated to the rights of
the holder of such Trust Preferred Securities with respect to payments on the
Trust Preferred Securities to the extent of any payments made by the Company to
such holder in any Direct Action.
The holders of the Trust Preferred Securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the related Junior Subordinated Debentures unless an
Event of Default has occurred and is continuing under the applicable Trust
Agreement. See "Description of Trust Preferred Securities--Events of Default;
Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any Person, and no Person shall consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to the Company, unless: (i) in
case the Company consolidates with or merges into another Person or conveys or
transfers its properties and assets as an entirety or substantially as an
entirety to any Person, the successor Person is organized under the laws of the
United States or any State or the District of Columbia, and such successor
Person expressly assumes the Company's obligations under the Junior Subordinated
Debentures and the Guarantees; (ii) immediately after giving effect thereto, no
Debenture Event of Default, and no event which, after notice or lapse of time or
both, would become a Debenture Event of Default, shall have occurred and be
continuing; and (iii) certain other conditions as prescribed in the Junior
Subordinated Debenture Indenture are met.
SATISFACTION AND DISCHARGE
The Junior Subordinated Debenture Indenture will cease to be of further
effect (except as to the Company's obligations to pay all other sums due
pursuant to the Junior Subordinated Debenture Indenture and to provide the
officers' certificates and opinions of counsel described therein), and the
Company will be deemed to have satisfied and discharged the Junior Subordinated
Debenture Indenture, when, among other things, all Junior Subordinated
Debentures not previously delivered to the Debenture Trustee for cancellation
(i) have become due and payable or (ii) will become due and payable at maturity
or upon redemption within one year, and the Company deposits or causes to be
deposited with the Debenture Trustee funds, in trust, for the purpose and in an
amount sufficient to pay and discharge the entire indebtedness on the Junior
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Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation, for the principal (and premium, if any) and interest to the date
of the deposit or to the stated maturity thereof, as the case may be.
SUBORDINATION
The Junior Subordinated Debentures will rank subordinate and junior in
right of payment to all Senior Indebtedness As Defined In the Junior
Subordinated Debenture Indenture to the extent provided in the Junior
Subordinated Debenture Indenture. Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in connection with any
insolvency or bankruptcy proceeding of the Company, the holders of Senior
Indebtedness As Defined In the Junior Subordinated Debenture Indenture will
first be entitled to receive payment in full of such Senior Indebtedness As
Defined In the Junior Subordinated Debenture Indenture before the holders of
Junior Subordinated Debentures will be entitled to receive or retain any payment
in respect thereof.
In the event of the acceleration of the maturity of Junior Subordinated
Debentures, the holders of all Senior Indebtedness As Defined In the Junior
Subordinated Debenture Indenture outstanding at the time of such acceleration
will first be entitled to receive payment in full of such Senior Indebtedness As
Defined In the Junior Subordinated Debenture Indenture before the holders of
Junior Subordinated Debentures will be entitled to receive or retain any payment
in respect of the Junior Subordinated Debentures.
No payments on account of principal or premium, if any, or interest in
respect of the Junior Subordinated Debentures may be made if there shall have
occurred and be continuing a default in any payment with respect to Senior
Indebtedness As Defined In the Junior Subordinated Debenture Indenture, or an
event of default with respect to any Senior Indebtedness As Defined In the
Junior Subordinated Debenture Indenture resulting in the acceleration of the
maturity thereof, or if any judicial proceeding shall be pending with respect to
any such default.
"Indebtedness" shall mean: (i) every obligation of the Company for money
borrowed; (ii) every obligation of the Company evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of the Company with respect to letters of credit,
banker's acceptances or similar facilities issued for the account of the
Company; (iv) every obligation of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of the Company; (vi) all indebtedness of the Company,
whether incurred on or prior to the date of the Junior Subordinated Debenture
Indenture or thereafter incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, the Company has guaranteed
or is responsible or liable for, directly or indirectly, as obligor or
otherwise; and (viii) obligations of the type referred to in clauses (i) through
(vii) of another Person secured by any lien on any property or asset of the
Company (whether or not such obligation is assumed by the Company); and all
deferrals, renewals, extensions and refundings of, and amendments, modifications
and supplements to, any of the foregoing obligations.
"Indebtedness Ranking on a Parity with the Junior Subordinated Debentures"
shall mean (i) Indebtedness, whether outstanding on the date of execution of the
Junior Subordinated Debenture Indenture or thereafter created, assumed or
incurred, to the extent such Indebtedness specifically by its terms ranks pari
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passu with and not prior to the Junior Subordinated Debentures in the right of
payment upon the happening of the dissolution, winding-up, liquidation or
reorganization of the Company and (ii) all other debt securities, and guarantees
in respect of those debt securities, issued to any other trust, or a trustee of
such trust, partnership or other entity affiliated with the Company that is a
financing vehicle of the Company (a "financing entity") in connection with the
issuance by such financing entity of equity securities or other securities
guaranteed by the Company pursuant to an instrument that ranks pari passu with
or junior in right of payment to the Guarantee. The securing of any Indebtedness
otherwise constituting Indebtedness Ranking on a Parity with the Junior
Subordinated Debentures shall not be deemed to prevent such Indebtedness from
constituting Indebtedness Ranking on a Parity with the Junior Subordinated
Debentures.
"Indebtedness Ranking Junior to the Junior Subordinated Debentures" shall
mean any Indebtedness, whether outstanding on the date of execution of the
Junior Subordinated Debenture Indenture or thereafter created, assumed or
incurred, to the extent such Indebtedness by its terms ranks junior to and not
pari passu with or prior to the Junior Subordinated Debentures (and any other
Indebtedness Ranking on a Parity with the Junior Subordinated Debentures) in
right of payment upon the happening of the dissolution, winding-up, liquidation
or reorganization of the Company. The securing of any Indebtedness otherwise
constituting Indebtedness Ranking Junior to the Junior Subordinated Debentures
shall not be deemed to prevent such Indebtedness from constituting Indebtedness
Ranking Junior to the Junior Subordinated Debentures.
"Senior Indebtedness As Defined In the Junior Subordinated Debenture
Indenture" shall mean all Indebtedness, whether outstanding on the date of
execution of the Junior Subordinated Debenture Indenture or thereafter created,
assumed or incurred, except Indebtedness Ranking on a Parity with the Junior
Subordinated Debentures or Indebtedness Ranking Junior to the Junior
Subordinated Debentures.
GOVERNING LAW
The Junior Subordinated Debenture Indenture and the Junior Subordinated
Debentures will be governed by and construed in accordance with the laws of the
State of Delaware.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee shall be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to the foregoing, the Debenture Trustee will not be under
any obligation to exercise any of the powers vested in it by the Junior
Subordinated Debenture Indenture at the request of any holder of Junior
Subordinated Debentures, unless offered reasonable indemnity by such holder
against the costs, expenses and liabilities which might be incurred thereby. The
Debenture Trustee will not be required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its duties if
the Debenture Trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company currently consists of
300,000,000 shares of Common Stock and 2,000,000 shares of Preferred Stock.
Preferred Stock may be issued from time to time in one or more classes or
series of preferred stock with such designations, powers, preferences and rights
of the shares of such class or series and the
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qualifications, limitations or restrictions thereon, including, but not limited
to, dividend rights, dividend rate or rates, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions) and the
liquidation preference established by the Board of Directors, without approval
of the stockholders, pursuant to the provisions of the Restated Certificate of
Incorporation of the Company (the "Certificate of Incorporation").
At August 31, 1998, there were outstanding (i) 94,630,404 shares of Common
Stock and (ii) no shares of Preferred Stock.
As described under "Description of Depositary Shares," the Company may
issue Depositary Shares evidenced by depositary receipts ("Depositary
Receipts"), each representing a fractional interest (to be specified in the
Prospectus Supplement relating to the particular class or series of the
Preferred Stock) in a share of a particular class or series of the Preferred
Stock issued and deposited with a Preferred Stock Depositary (as defined
herein).
The following summary description of the capital stock of the Company is
qualified in its entirety by reference to the Certificate of Incorporation and
the By-Laws of the Company, as amended (the "By-Laws"), copies of which are
filed as exhibits to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1992 and to the Registration Statement of which this
Prospectus is a part.
COMMON STOCK
Dividends. Subject to the rights of the holders of Preferred Stock,
holders of Common Stock are entitled to receive dividends and other
distributions in cash, stock or property of the Company, when, as and if
declared by the Board of Directors out of assets or funds of the Company legally
available therefor and shall share equally on a per share basis in all such
dividends and other distributions.
Voting Rights. At every meeting of stockholders, every holder of Common
Stock is entitled to one vote per share. Subject to any voting rights which may
be granted to holders of Preferred Stock, any action submitted to stockholders
is approved if the number of votes cast in favor of such action exceeds the
number of votes required by the provisions of the Certificate of Incorporation
or by law, subject to applicable quorum requirements. The Certificate of
Incorporation requires the affirmative vote of at least 80% of the voting power
of all of the stockholders with respect to certain fundamental corporate
transactions. The Certificate of Incorporation also precludes stockholders from
acting by written consent.
Liquidation Rights. In the event of any liquidation, dissolution or
winding-up of the business of the Company, whether voluntary or involuntary (any
such event, a "Liquidation"), the holders of Common Stock are entitled to share
equally in the assets available for distribution after payment of all
liabilities and provision for the liquidation preference of any shares of
Preferred Stock then outstanding.
Miscellaneous. The holders of Common Stock have no preemptive rights,
cumulative voting rights, subscription rights, or conversion rights and the
Common Stock is not subject to redemption.
The Company has a classified Board of Directors with three-year terms. The
directors are divided into three classes as equal in number as possible and the
term of one class expires each year.
The transfer agent and registrar with respect to the Common Stock is Chase
Mellon Shareholder Services.
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All shares of Common Stock offered pursuant to a Prospectus Supplement, or
issuable upon conversion, exchange or exercise of Offered Securities, will, when
issued, be fully paid and non-assessable. The Common Stock is traded on the New
York Stock Exchange under the symbol "HPC."
Reference is made to the applicable Prospectus Supplement relating to the
Common Stock offered thereby for specific terms, including: (i) the number of
shares offered, (ii) the initial offering price, if any, and market price and
(iii) dividend information.
PREFERRED STOCK
The following description of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which any Prospectus
Supplement may relate. The statements below describing the Preferred Stock are
in all respects subject to and qualified in their entirety by reference to the
applicable provisions of the Certificate of Incorporation (including any future
amendments thereto) and By-Laws, as amended.
GENERAL
Subject to limitations prescribed by Delaware law and the Certificate of
Incorporation, the Board of Directors is authorized to fix the number of shares
constituting each class or series of Preferred Stock and the designations and
powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof, including such
provisions as may be desired concerning voting, redemption, dividends,
dissolution or the distribution of assets, conversion or exchange, and such
other subjects or matters as may be fixed by resolution of the Board of
Directors or duly authorized committee thereof. The Preferred Stock will, when
issued, be fully paid and non-assessable and will not have, or be subject to,
any preemptive or similar rights.
Reference is made to the Prospectus Supplement relating to the class or
series of Preferred Stock offered thereby for specific terms, including: (i)
the class or series, title and stated value, if any, of such Preferred Stock;
(ii) the number of shares of such Preferred Stock offered and the liquidation
preference per share and the initial offering price, if any, of such Preferred
Stock; (iii) the dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock; (iv)
whether dividends on such Preferred Stock shall be cumulative or not and, if
cumulative, the date from which dividends on such Preferred Stock shall
accumulate; (v) any voting rights granted to the holders of such Preferred
Stock or required by law; (vi) the procedures for any auction and remarketing,
if any, for such Preferred Stock; (vii) provisions for a sinking fund, if any,
for such Preferred Stock; (viii) provisions for redemption, if applicable, of
such Preferred Stock; (ix) any listing of such Preferred Stock on any
securities exchange; (x) the terms and conditions, if applicable, upon which
such Preferred Stock will be convertible into or exchangeable for other
securities or rights, or a combination of the foregoing, including the name of
the issuer of such securities or rights, the conversion or exchange price or
rate (or manner of calculation thereof) and the conversion or exchange date(s)
or period(s); (xi) whether interests in such Preferred Stock will be
represented by Depositary Shares, and, if so, the terms thereof; (xii) a
discussion of certain material U.S. federal income tax considerations
applicable to such Preferred Stock; and (xiii) any other material terms,
preferences, rights, limitations or restrictions of such Preferred Stock.
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RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock will, with respect to (as applicable) dividend rights and rights upon
liquidation, dissolution or winding-up of the Company, rank (i) senior to all
classes or series of Common Stock of the Company and to all equity securities of
the Company the terms of which provide that such equity securities are
subordinated to the Preferred Stock; (ii) on a parity with all equity securities
of the Company other than those referred to in clauses (i) and (iii); and (iii)
junior to all equity securities of the Company which the terms of such Preferred
Stock provide will rank senior to it.
DIVIDENDS
Holders of shares of the Preferred Stock of each class or series shall be
entitled to receive, when, as and if declared by the Board of Directors of the
Company, out of assets of the Company legally available for payment, cash
dividends at such rates and on such dates as will be set forth in the applicable
Prospectus Supplement. Each such dividend shall be payable to holders of record
as they appear on the stock transfer books of the Company on such record dates
as shall be fixed by the Board of Directors of the Company.
Dividends on any class or series of the Preferred Stock may be cumulative
or non-cumulative, as provided in the applicable Prospectus Supplement.
Dividends, if cumulative, will accumulate from and after the date set forth in
the applicable Prospectus Supplement. If the Board of Directors of the Company
fails to declare a dividend payable on a dividend payment date on any class or
series of the Preferred Stock for which dividends are non-cumulative, then the
holders of such class or series of the Preferred Stock will have no right to
receive a dividend in respect of the dividend period ending on such dividend
payment date, and the Company will have no obligation to pay the dividend
accrued for such period, whether or not dividends on such class or series are
declared payable on any future dividend payment date.
If any shares of the Preferred Stock of any class or series are
outstanding, no full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of the Company of any other class or series
ranking, as to dividends, on a parity with or junior to the Preferred Stock of
such class or series for any period unless (i) if such class or series of
Preferred Stock has a cumulative dividend, full cumulative dividends on the
Preferred Stock of such class or series have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods and the then current dividend
period or (ii) if such class or series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such class or
series have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment for the then
current dividend period ((i) and (ii) are hereinafter collectively referred to
as "all required dividends are paid"). When dividends are not paid in full (or a
sum sufficient for such full payment is not so set apart) upon the shares of
Preferred Stock of any class or series and the shares of any other class or
series of Preferred Stock ranking on a parity as to dividends with the Preferred
Stock of such class or series, all dividends declared upon shares of Preferred
Stock of such class or series and any other class or series of Preferred Stock
ranking on a parity as to dividends with such Preferred Stock shall be declared
pro rata so that the amount of dividends declared per share on the Preferred
Stock of such class or series and such other class or series of Preferred Stock
shall in all cases bear to each other the same ratio that accrued and unpaid
dividends per share on the shares of Preferred Stock of such class or series
(which shall not include any accumulation in respect of unpaid dividends for
prior dividend periods if such Preferred Stock does not have a cumulative
dividend) and such other class or series of Preferred Stock bear to each other.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on Preferred Stock of such class or series
which may be in arrears.
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Except as provided in the immediately preceding paragraph, unless all
required dividends are paid, no dividends (other than in Common Stock or other
stock ranking junior to the Preferred Stock of such class or series as to
dividends and upon liquidation, dissolution or winding-up of the Company) shall
be declared or paid or set aside for payment or other distribution shall be
declared or made upon the Common Stock or any other stock of the Company ranking
junior to or on a parity with the Preferred Stock of such class or series as to
dividends or upon liquidation, nor shall any Common Stock or any other capital
stock of the Company ranking junior to or on a parity with the Preferred Stock
of such class or series as to dividends or upon liquidation, dissolution or
winding-up of the Company be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Company (except by
conversion into or exchange for other stock of the Company ranking junior to the
Preferred Stock of such class or series as to dividends and upon liquidation,
dissolution or winding-up of the Company).
Any dividend payment made on shares of a class or series of Preferred
Stock shall first be credited against the earliest accrued but unpaid dividend
due with respect to shares of such class or series which remains payable.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the shares of
Preferred Stock will be subject to mandatory redemption or redemption at the
option of the Company, as a whole or in part, in each case upon the terms, at
the times and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a class or series of Preferred Stock
that is subject to mandatory redemption will specify the number of shares of
such Preferred Stock that shall be redeemed by the Company in each year
commencing after a date to be specified, at a redemption price per share to be
specified, together with an amount equal to all accumulated and unpaid dividends
thereon (which shall not, if such Preferred Stock does not have a cumulative
dividend, include any accumulation in respect of unpaid dividends for prior
dividend periods) to the date of redemption. The redemption price may be payable
in cash or other property, as specified in the applicable Prospectus Supplement.
If the redemption price for Preferred Stock of any series is payable only from
the net proceeds of the issuance of stock of the Company, the terms of such
Preferred Stock may provide that, if no such stock shall have been issued or to
the extent the net proceeds from any issuance are insufficient to pay in full
the aggregate redemption price then due, such Preferred Stock shall
automatically and mandatorily be converted into shares of the applicable stock
of the Company pursuant to conversion provisions specified in the applicable
Prospectus Supplement.
Notwithstanding the foregoing, unless provided otherwise for any class or
series of Preferred Stock, unless all required dividends are paid: (i) no
shares of the applicable class or series of Preferred Stock shall be redeemed
unless all outstanding shares of Preferred Stock of such class or series are
simultaneously redeemed and (ii) the Company shall not purchase or otherwise
acquire directly or indirectly any shares of the applicable class or series of
Preferred Stock (except by conversion into or exchange for stock of the Company
ranking junior to the Preferred Stock of such class or series as to dividends
and upon liquidation, dissolution or winding-up of the Company), provided,
however, that the foregoing shall not prevent the purchase or acquisition of
shares of Preferred Stock of such class or series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
Preferred Stock of such class or series.
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LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding-up
of the Company, then, before any distribution or payment shall be made to the
holders of any Common Stock or any other class or series of stock of the Company
ranking junior to such class or series of Preferred Stock in the distribution of
assets upon any liquidation, dissolution or winding-up of the Company, the
holders of each class or series of Preferred Stock shall be entitled to receive
out of assets of the Company legally available for distribution to stockholders
liquidating distributions in the amount of the liquidation preference per share
(set forth in the applicable Prospectus Supplement), plus an amount equal to all
dividends accrued and unpaid thereon (which shall not include any accumulation
in respect of unpaid dividends for prior dividend periods if such class or
series of Preferred Stock does not have a cumulative dividend). After payment of
the full amount of the liquidating distributions to which they are entitled, the
holders of such class or series of Preferred Stock will have no right or claim
to any of the remaining assets of the Company. In the event that, upon any
voluntary or involuntary liquidation, dissolution or winding-up of the Company,
the legally available assets of the Company are insufficient to pay the amount
of the liquidating distributions on all outstanding shares of such class or
series of Preferred Stock and the corresponding amounts payable on all shares of
other classes or series of stock of the Company ranking on a parity with such
class or series of Preferred Stock in the distribution of assets upon any
liquidation, dissolution or winding-up of the Company, then the holders of such
class or series of Preferred Stock and all other such classes or series of stock
shall share ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be respectively
entitled.
If liquidating distributions shall have been made in full to all holders
of shares of such class or series of Preferred Stock, the remaining assets of
the Company shall be distributed among the holders of any other classes or
series of stock ranking junior to such class or series of Preferred Stock upon
any liquidation, dissolution or winding-up of the Company, according to their
respective rights and preferences and in each case according to their respective
number of shares.
For such purposes, neither the consolidation or merger of the Company with
or into any other Company nor the sale, lease, transfer or conveyance of all or
substantially all of the property or business of the Company shall be deemed to
constitute a liquidation, dissolution or winding-up of the Company.
VOTING RIGHTS
Holders of such class or series of Preferred Stock will not have any
voting rights, except as set forth below (unless otherwise specified in a
Prospectus Supplement) or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
If specified in the applicable Prospectus Supplement, or as long as the
Preferred Stock is listed on an exchange so requiring, whenever dividends on any
shares of such class or series of Preferred Stock shall be in arrears for six or
more quarterly periods, regardless of whether such quarterly periods are
consecutive, the holders of such shares of such class or series of Preferred
Stock (voting together as a class with all other classes or series of preferred
stock upon which like voting rights have been conferred and are exercisable)
will be entitled to vote for the election of two additional directors of the
Company at a special meeting called by an officer of the Company at the request
of a holder of such class or series of Preferred Stock or, if such special
meeting is not called by an officer of the Company within 30 days, at a special
meeting called by a holder of such class or series of Preferred Stock designated
by the holders of record of at least 10% of the shares of any such class or
series of Preferred Stock (unless such request is received less than 90 days
before the date fixed for the next annual or special meeting of the
stockholders), or at the next annual meeting of stockholders, and at each
subsequent annual meeting
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until (i) if such class or series of Preferred Stock has a cumulative dividend,
all dividends accumulated on such shares of Preferred Stock for the past
dividend periods and the then current dividend period shall have been fully paid
or declared and a sum sufficient for the payment thereof set apart for payment
or (ii) if such class or series of Preferred Stock does not have a cumulative
dividend, four consecutive quarterly dividends shall have been fully paid or
declared and a sum sufficient for the payment thereof set apart for payment. In
such case, the entire Board of Directors of the Company will be increased by two
directors.
Unless provided otherwise for any series of Preferred Stock, so long as
any shares of Preferred Stock remain outstanding, the Company shall not, without
the affirmative vote or consent of the holders of at least two-thirds of the
shares of each class or series of Preferred Stock outstanding at the time, given
in person or by proxy, either in writing or at a meeting (such class or series
voting separately as a class), (i) authorize or create, or increase the
authorized or issued amount of, any class or series of stock ranking senior to
such class or series of Preferred Stock with respect to payment of dividends or
the distribution of assets upon liquidation, dissolution or winding-up of the
Company or reclassify any authorized stock of the Company into any such shares,
or create, authorize or issue any obligation or security convertible into or
exchangeable for, or evidencing the right to purchase, any such shares; or (ii)
amend, alter or repeal the provisions of the Certificate of Incorporation in
respect of such class or series of Preferred Stock, whether by merger,
consolidation or otherwise, so as to materially and adversely affect any right,
preference, privilege or voting power of such class or series of Preferred Stock
or the holders thereof; provided, however, that any increase in the amount of
the authorized Preferred Stock or the creation or issuance of any other class or
series of Preferred Stock, or any increase in the amount of authorized shares of
such class or series, in each case ranking on a parity with or junior to the
Preferred Stock of such class or series with respect to payment of dividends and
the distribution of assets upon liquidation, dissolution or winding-up, shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such class or series of Preferred Stock
shall have been redeemed or called for redemption upon proper notice and
sufficient funds shall have been irrevocably deposited in trust to effect such
redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which shares of any class or series
of Preferred Stock are convertible into or exchangeable for other securities or
rights of the Company or other issuers, including, without limitation, Common
Stock, Debt Securities or another series of Preferred Stock, or any combination
of the foregoing, will be set forth in the applicable Prospectus Supplement
relating thereto. Such terms will include the name of the issuer of such other
securities or rights and the number or principal amount of the securities or
rights into which the Preferred Stock is convertible or exchangeable, the
conversion or exchange price or rate (or manner of calculation thereof), the
conversion or exchange date(s) or period(s), provisions as to whether the
conversion or exchange will be at the option of the holders of such class or
series of Preferred Stock or the Company or other issuer and the events
requiring an adjustment of the conversion or exchange price or rate.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below) and of the
Depositary Shares and Depositary Receipts summarizes the material terms of the
Deposit Agreement and of the Depositary Shares and Depositary Receipts, and is
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qualified in its entirety by reference to the Deposit Agreement and the
Depositary Receipts evidencing the Depositary Shares.
GENERAL
The Company may issue shares of Preferred Stock represented by Depositary
Shares. The shares of any series of the Preferred Stock underlying the
Depositary Shares will be deposited under a separate deposit agreement (the
"Deposit Agreement") between the Company and a bank or trust company selected by
the Company (the "Preferred Stock Depositary"). The Prospectus Supplement
relating to Depositary Shares will set forth the name and address of the
Preferred Stock Depositary. Subject to the terms of the Deposit Agreement, each
holder of a Depositary Receipt evidencing Depositary Shares will be entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Stock represented by such Depositary Shares (including dividend, voting,
redemption, conversion, exchange and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement, each of which will represent the applicable
fractional interest in a share of a particular series of the Preferred Stock
described in the applicable Prospectus Supplement.
A holder of Depositary Receipts evidencing Depositary Shares will be
entitled to receive the shares of Preferred Stock (but only in whole shares of
Preferred Stock) underlying such Depositary Shares. If the Depositary Receipts
delivered by the holder evidence a number of Depositary Shares in excess of the
whole number of shares of Preferred Stock to be withdrawn, the Depositary will
deliver to such holder at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares. The Company may also deliver cash in lieu
of delivery of fractional interests in Preferred Stock.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions in respect of the series of Preferred Stock represented by
the Depository Shares to the holders of Depositary Receipts in proportion to
the number of Depositary Receipts owned by such holders. The Preferred Stock
Depositary, however, will distribute only such amounts as can be distributed
without attributing to any Depositary Share a fraction of one cent, and any
balance not so distributed will be added to and treated as part of the next sum
received by that Preferred Stock Depositary for distribution to holders of
Depositary Receipts then outstanding.
In the event of a distribution other than in cash in respect to the
Preferred Stock, the Preferred Stock Depositary will distribute property
received by it to the holders of Depositary Receipts in proportion, insofar as
possible, to the number of Depositary Shares owned by such holders, unless the
Preferred Stock Depositary determines that it is not feasible to make such
distribution, in which case the Preferred Stock Depositary may, with the
approval of the Company, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including public or private sale
of such property and distribution of the net proceeds from such sale to such
holders.
The amounts so distributed in any of the foregoing cases will be reduced
by any amount required by law to be withheld by the Company or the Preferred
Stock Depositary on account of taxes.
CONVERSION AND EXCHANGE
If any Preferred Stock underlying the Depositary Shares is subject to
provisions relating to its conversion or exchange as set forth in the applicable
Prospectus Supplement, each holder of Depositary
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Receipts will have the right or obligation to convert or exchange the Depositary
Shares represented by such Depositary Receipts pursuant to the terms thereof.
REDEMPTION
If any series of Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Preferred Stock Depositary resulting from the redemption, in
whole or in part, of the related Preferred Stock held by the Preferred Stock
Depositary. The redemption price per Depositary Share will be equal to the
corresponding proportion of the redemption price payable with respect to the
number of shares of Preferred Stock underlying the Depositary Shares. Whenever
the Company redeems Preferred Stock from the Preferred Stock Depositary, the
Preferred Stock Depositary will redeem as of the same redemption date a
proportionate number of Depositary Shares representing the shares of Preferred
Stock that were redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata as may be determined by the Company.
After the date fixed for redemption, the Depositary Receipts evidencing
such Depositary Shares so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary Receipts evidencing
such Depositary Shares will cease, except the right to receive the redemption
price upon such redemption. Any funds deposited by the Company with the
Preferred Stock Depositary for any Depositary Shares which the holders of the
Depositary Receipts evidencing such Depositary Shares fail to redeem shall be
returned to the Company after a period of two years from the date such funds are
so deposited.
VOTING
Upon receipt of notice of any meeting at which the holders of any shares
of Preferred Stock underlying the Depositary Shares are entitled to vote, the
Preferred Stock Depositary will mail the information contained in such notice to
the holders of the Depositary Receipts evidencing such Depositary Shares. Each
holder of such Depositary Receipts on the record date (which will be the same
date as the record date for such Preferred Stock) will be entitled to instruct
the Preferred Stock Depositary as to the exercise of the voting rights
pertaining to the number of shares of Preferred Stock underlying such Depositary
Shares. The Preferred Stock Depositary will endeavor, insofar as practicable, to
vote the number of shares of Preferred Stock underlying such Depositary Shares
in accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting the Preferred Stock to the
extent it does not receive specific written instructions from holders of
Depositary Receipts.
RECORD DATE
Whenever (i) any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall be offered with respect to the Preferred Stock,
or (ii) the Preferred Stock Depositary shall receive notice of any meeting at
which holders of Preferred Stock are entitled to vote or of which holders of
Preferred Stock are entitled to notice, or of the mandatory conversion or
redemption of, or any election on the part of the Company to call for the
redemption of, any Preferred Stock, the Preferred Stock Depositary shall in each
such instance fix a record date (which shall be the same as the record date for
the Preferred Stock) for the determination of the holders of Depositary Receipts
who (x) shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or (y) shall be entitled to give instructions for the
exercise of voting rights at any such meeting or to receive
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notice of such meeting or of such redemption or conversion, subject to the
provisions of the Deposit Agreement.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
Any provision of the Deposit Agreement or any Depositary Receipt may at
any time be amended by agreement between the Company and the Preferred Stock
Depositary. However, any amendment which imposes or increases any fees, taxes or
other charges payable by the holders of Depositary Receipts (other than taxes
and other governmental charges, fees and other expenses payable by such holders
as stated under "--Charges of Preferred Stock Depositary"), or which otherwise
materially and adversely affects any existing right of holders of Depositary
Receipts, will not take effect as to outstanding Depositary Receipts unless
approved by at least two-thirds of the holders of such outstanding Depositary
Receipts.
Whenever so directed by the Company, the Preferred Stock Depositary will
terminate the Deposit Agreement by mailing notice of such termination to the
holders of all Depositary Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination, provided, however, that any
such termination that materially and adversely affects the holders of the
Depositary Receipts must be approved by at least two-thirds of the holders of
the outstanding Depositary Receipts. If any Depositary Receipts remain
outstanding after the date of termination of the Deposit Agreement, the
Preferred Stock Depositary will exchange the Depositary Receipts for shares of
the Preferred Stock underlying the Depositary Shares represented by such
Depositary Receipts, and thereafter, will discontinue the transfer of
Depositary Receipts, suspend the distribution of dividends to the holders
thereof, and not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit Agreement.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay all charges of the Preferred Stock Depositary,
including charges in connection with the initial deposit of the Preferred Stock,
the initial issuance of the Depositary Receipts, the distribution of information
to the holders of Depositary Receipts with respect to matters on which Preferred
Stock is entitled to vote, withdrawals of the Preferred Stock by the holders of
Depositary Receipts or redemption or conversion of the Preferred Stock, except
for taxes (including transfer taxes, if any) and other governmental charges and
such other charges as are expressly provided in the Deposit Agreement to be at
the expense of holders of Depositary Receipts or persons depositing Preferred
Stock.
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MISCELLANEOUS
The Preferred Stock Depositary will make available for inspection by
holders of Depositary Receipts at its corporate office and its New York office,
all reports and communications from the Company which are delivered to the
Preferred Stock Depositary as the holder of Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if
prevented or delayed by law or any circumstance beyond its control in performing
its obligations under the Deposit Agreement. The obligations of the Preferred
Stock Depositary under the Deposit Agreement are limited to performing its
duties thereunder without negligence or bad faith. The obligations of the
Company under the Deposit Agreement are limited to performing its duties
thereunder without negligence and in good faith. Neither the Company nor the
Preferred Stock Depositary is obligated to prosecute or defend any legal
proceeding in respect of any Depositary Receipts, Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. The Company and the Preferred
Stock Depositary are entitled to rely upon advice of or information from
counsel, accountants or other persons believed to be competent and on documents
believed to be genuine.
The Preferred Stock Depositary may resign at any time or be removed by the
Company, effective upon the acceptance by its successor of its appointment as
successor depositary. If a successor depositary shall not have been appointed
and accepted its appointment within 45 days after the giving of such notice of
resignation, the resigning Preferred Stock Depositary may petition any court of
competent jurisdiction for the appointment of a successor depositary with
respect to outstanding Depositary Receipts under the Deposit Agreement.
DESCRIPTION OF WARRANTS
The Company may issue Warrants to purchase Senior Debt Securities,
Subordinated Debt Securities, Preferred Stock, Depositary Shares or Common Stock
(collectively, the "Underlying Warrant Securities"), and such Warrants may be
issued independently or together with any such Underlying Warrant Securities and
may be attached to or separate from such Underlying Warrant Securities. Each
series of Warrants will be issued under a separate warrant agreement (each a
"Warrant Agreement") to be entered into between the Company and a warrant agent
("Warrant Agent"). The Warrant Agent will act solely as an agent of the Company
in connection with the Warrants of such series and will not assume any
obligation or relationship of agency for or with holders or beneficial owners of
Warrants.
The applicable Prospectus Supplement will describe the specific terms of
any Warrants offered thereby, including: (i) the title of such Warrants; (ii)
the aggregate number of such Warrants; (iii) the price or prices at which such
Warrants will be issued; (iv) the currency or currencies, including composite
currencies, in which the exercise price of such Warrants may be payable; (v) the
designation and terms of the Underlying Warrant Securities purchasable upon
exercise of such Warrants; (vi) the price at which the Underlying Warrant
Securities purchasable upon exercise of such Warrants may be purchased; (vii)
the date on which the right to exercise such Warrants shall commence and the
date on which such right shall expire; (viii) whether such Warrants will be
issued in registered form or bearer form; (ix) if applicable, the minimum or
maximum amount of such Warrants which may be exercised at any one time; (x) if
applicable, the designation and terms of the Underlying Warrant Securities with
which such Warrants are issued and the number of such Warrants issued with each
such Underlying Warrant Security; (xi) if applicable, the date on and after
which such Warrants and the related Underlying Warrant Securities will be
separately transferable; (xii) information with respect to book-entry
procedures, if any; (xiii) if applicable, a discussion of certain United States
federal income tax
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considerations; and (xiv) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants.
DESCRIPTION OF TRUST PREFERRED SECURITIES
The Trust Preferred Securities will be issued by a Hercules Trust under
the applicable Trust Agreement and will represent beneficial interests in such
Hercules Trust. The holders of such beneficial interests will be entitled to a
preference over the Trust Common Securities of such Hercules Trust with respect
to the payment of distributions and amounts payable on redemption of the Trust
Preferred Securities or the liquidation of such Hercules Trust under the
circumstances described under "--Subordination of Trust Common Securities." Each
Trust Agreement has been qualified under the Trust Indenture Act and is subject
to, and governed by, the Trust Indenture Act. This summary of certain terms and
provisions of the Trust Preferred Securities and the Trust Agreements does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all of the provisions of such Trust Preferred Securities and such
Trust Agreement, including the definitions therein of certain terms, and those
made a part of such Trust Agreement by the Trust Indenture Act.
Reference is made to the applicable Prospectus Supplement for a description
of the specific terms of the Trust Preferred Securities offered thereby,
including (i) the particular Hercules Trust issuing such Trust Preferred
Securities; (ii) the specific designation, number and purchase price of such
Trust Preferred Securities; (iii) the annual distribution rate (or method of
calculation of the distribution rate) for such Trust Preferred Securities and,
if applicable, the dates from which and upon which such distributions shall
accumulate and be payable and the record dates therefor, and the maximum
Extension Period for which such distributions may be deferred; (iv) the
Liquidation Amount per Trust Preferred Security which shall be paid out of the
assets of such Hercules Trust to the holders thereof upon voluntary or
involuntary dissolution, winding-up and liquidation of such Hercules Trust; (v)
the obligation or right, if any, of such Hercules Trust to purchase or redeem
its Trust Preferred Securities and the price or prices at which, the date or
dates on which or period or periods within which and the terms and conditions
upon which, such Trust Preferred Securities shall or may be purchased or
redeemed, in whole or in part, pursuant to such obligation or right; (vi) the
terms and conditions, if any, upon which such Trust Preferred Securities may be
converted or exchanged, in addition to the circumstances described herein, into
other securities or rights, or a combination of the foregoing, including the
name of the issuer of such securities or rights, the initial conversion or
exchange price or rate per Trust Preferred Security and the date or dates on
which or period or periods within which such conversion or exchange may be
effected; (vii) if applicable, any securities exchange upon which such Trust
Preferred Securities shall be listed; (viii) whether such Trust Preferred
Securities are issuable in book-entry only form and, if so, the identity of the
depositary and disclosure relating to the depositary arrangements; and (ix) any
other rights, preferences, privileges, limitations or restrictions of such Trust
Preferred Securities consistent with the applicable Trust Agreement or with
applicable law (which may differ from those described herein). Certain material
United States federal income tax considerations applicable to any offering of
Trust Preferred Securities will also be described in the applicable Prospectus
Supplement.
GENERAL
The Trust Preferred Securities of a Hercules Trust will rank pari passu,
and payments will be made thereon pro rata, with the Trust Common Securities of
such Hercules Trust except as described under "--Subordination of Trust Common
Securities." The proceeds from the sale of Trust Preferred Securities and Trust
Common Securities by a Hercules Trust will be used by such Hercules Trust to
purchase an
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aggregate principal amount of Junior Subordinated Debentures of the Company
equal to the aggregate Liquidation Amount of such Trust Preferred Securities and
Trust Common Securities. Legal title to such Junior Subordinated Debentures will
be held by the Property Trustee of the Hercules Trust for the benefit of the
holders of the related Trust Securities. In addition, the Company will execute a
Guarantee for the benefit of the holders of the related Trust Preferred
Securities. The Guarantees will not guarantee payment of distributions or
amounts payable on redemption of the Trust Preferred Securities or liquidation
of a Hercules Trust when such Hercules Trust does not have funds legally
available for the payment thereof. See "Description of Guarantees."
The revenue of a Hercules Trust available for distribution to holders of
its Trust Preferred Securities will be limited to payments under the related
Junior Subordinated Debentures which such Hercules Trust purchased with the
proceeds from the sale of its Trust Securities. If the Company fails to make a
required payment in respect of such Junior Subordinated Debentures, the
applicable Hercules Trust will not have sufficient funds to make the related
payments, including distributions, in respect of its Trust Preferred Securities.
Each of the Hercules Trusts is a separate legal entity and the assets of one are
not available to satisfy the obligations of any other.
DEFERRAL OF DISTRIBUTIONS
So long as no Debenture Event of Default has occurred and is continuing,
the Company will have the right under the Junior Subordinated Debenture
Indenture to defer the payment of interest on the Junior Subordinated Debentures
at any time or from time to time for up to the maximum Extension Period
specified in the applicable Prospectus Supplement, provided that an Extension
Period must end on an interest payment date and may not extend beyond the stated
maturity of such Junior Subordinated Debentures. If the Company elects to
exercise such right, distributions on the related Trust Preferred Securities
will be deferred during any such Extension Period. Distributions to which
holders of the Trust Preferred Securities are entitled during any Extension
Period will continue to accumulate additional distributions thereon. The Company
has no current intention to exercise its right to defer payments of interest on
the Junior Subordinated Debentures it may issue and, accordingly, distributions
on the related Trust Preferred Securities.
REDEMPTION
Upon the repayment at the stated maturity or redemption (in whole or in
part) prior to the stated maturity of the Junior Subordinated Debentures, the
proceeds from such repayment or redemption shall be applied by the Property
Trustee to redeem an aggregate liquidation amount of the related Trust
Securities equal to the aggregate principal amount of such Junior Subordinated
Debentures so repaid or redeemed, upon not less than 30 nor more than 60 days'
prior written notice, at a redemption price equal to such aggregate liquidation
amount plus accumulated distributions to the redemption date. Any redemption of
Trust Securities shall be made and the applicable redemption price shall be
payable on the redemption date only to the extent that the applicable Hercules
Trust has funds legally available for the payment thereof. See "--Subordination
of Trust Common Securities."
If less than all of the Junior Subordinated Debentures are to be redeemed
prior to the stated maturity thereof, then the proceeds of such redemption shall
be used to redeem the related Trust Securities on a pro rata basis among the
Trust Preferred Securities and the Trust Common Securities of the applicable
Hercules Trust except as described under "--Subordination of Trust Common
Securities." If less than all of the Trust Preferred Securities held in
book-entry form, if any, are to be redeemed, such Trust Preferred Securities
will be redeemed in accordance with the procedures of DTC. See "--Global Trust
Preferred Securities."
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REDEMPTION PROCEDURES
If a Hercules Trust gives a notice of redemption in respect of its Trust
Preferred Securities, then, by 12:00 noon, New York City time, on the redemption
date, to the extent funds are legally available, (i) with respect to Trust
Preferred Securities held by DTC or its nominee, the Property Trustee will
deposit, or cause the Paying Agent (as defined herein) to deposit, irrevocably
with DTC funds sufficient to pay the applicable redemption price and (ii) with
respect to Trust Preferred Securities held in certificated form, the Property
Trustee will irrevocably deposit with the Paying Agent funds sufficient to pay
the applicable redemption price and will give such Paying Agent irrevocable
instructions and authority to pay the applicable redemption price to the holders
thereof upon surrender of their certificates evidencing the Trust Preferred
Securities. If notice of redemption shall have been given and funds irrevocably
deposited as required, then, upon the date of such deposit, all rights of the
holders of the Trust Preferred Securities called for redemption will cease,
except the right of such holders to receive the applicable redemption price, but
without interest thereon, and such Trust Preferred Securities will cease to be
outstanding. In the event that any redemption date is not a Business Day, then
the applicable redemption price payable on such date will be paid on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), with the same force and effect as if made on such
date. In the event that payment of the applicable redemption price is improperly
withheld or refused and not paid either by the applicable Hercules Trust or by
the Company pursuant to the applicable Guarantee as described under "Description
of Guarantees," (i) distributions on the related Trust Preferred Securities will
continue to accumulate from the redemption date originally established by such
Hercules Trust to the date such applicable redemption price is actually paid and
(ii) the actual payment date will be the redemption date for purposes of
calculating the applicable Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Trust Preferred Securities by tender, in
the open market or by private agreement.
LIQUIDATION OF A HERCULES TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED
DEBENTURES
The Company will have the right at any time to dissolve a Hercules Trust
and cause the related Junior Subordinated Debentures to be distributed to the
holders of the Trust Securities of such Hercules Trust in liquidation of such
Hercules Trust after satisfaction of liabilities to creditors of such Hercules
Trust as required by applicable law. Such right is subject to the Company having
received an opinion of counsel to the effect that such distribution will not be
a taxable event to holders of the Trust Preferred Securities of such Hercules
Trust.
Each Hercules Trust shall automatically dissolve upon the first to occur
of: (i) certain events of bankruptcy, dissolution or liquidation of the Company;
(ii) the distribution of the related Junior Subordinated Debentures to the
holders of the Trust Securities of such Hercules Trust, if the Company, as
Sponsor, has given written direction to the Property Trustee to dissolve such
Hercules Trust (which direction is optional and, except as described above,
wholly within the discretion of the Company, as Sponsor); (iii) the conversion,
exchange or redemption of all of the Trust Securities of such Hercules Trust;
(iv) expiration of the term of such Hercules Trust and (v) the entry of an order
for the dissolution of such Hercules Trust by a court of competent jurisdiction.
If a dissolution occurs as described in clause (i), (ii), (iv) or (v)
above, the applicable Hercules Trust shall be liquidated by the Issuer Trustees
as expeditiously as the Issuer Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of such Hercules
Trust as provided by applicable law, to the holders of the Trust Securities the
related Junior Subordinated Debentures, unless such distribution is
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determined by the Property Trustee not to be practicable, in which event such
holders will be entitled to receive out of the assets of such Hercules Trust
legally available for distribution to holders, after satisfaction of liabilities
to creditors of such Hercules Trust as provided by applicable law, an amount
equal to the aggregate of the Liquidation Amount per Trust Security specified in
the applicable Prospectus Supplement plus accumulated distributions thereon to
the date of payment (such amount being referred to herein as the "Liquidation
Distribution"). If the Liquidation Distribution can be paid only in part because
the applicable Hercules Trust has insufficient assets legally available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by such Hercules Trust on its Trust Securities shall be paid on a pro
rata basis, except that if a Debenture Event of Default has occurred and is
continuing, the Trust Preferred Securities of such Hercules Trust shall have a
priority over the Trust Common Securities of such Hercules Trust in respect of
such amounts. See "--Subordination of Trust Common Securities."
After a date is fixed for any distribution of Junior Subordinated
Debentures to holders of the related Trust Securities, (i) such Trust Securities
will no longer be deemed to be outstanding, (ii) each registered global
certificate, if any, representing such Trust Securities will be exchanged for a
registered global certificate representing the Junior Subordinated Debentures to
be delivered upon such distribution and (iii) any Trust Securities in
certificated form will be deemed to represent Junior Subordinated Debentures
having a principal amount equal to the liquidation amount of such Trust
Securities, and bearing accrued interest in an amount equal to the accumulated
distributions on such Trust Securities until such certificates are presented to
the Administrative Trustees or their agent for cancellation, whereupon the
Company will issue to such holder, and the Debenture Trustee will authenticate,
Junior Subordinated Debentures in certificated form.
There can be no assurance as to the market prices for the Trust Preferred
Securities or the Junior Subordinated Debentures that may be distributed in
exchange for such Trust Preferred Securities if a dissolution and liquidation of
the applicable Hercules Trust were to occur. Accordingly, the Trust Preferred
Securities that an investor may purchase, or the Junior Subordinated Debentures
that the investor may receive on dissolution and liquidation of the applicable
Hercules Trust, may trade at a discount to the price that the investor paid to
purchase such Trust Preferred Securities.
SUBORDINATION OF TRUST COMMON SECURITIES
Payment of distributions on, and the applicable redemption price of, Trust
Securities shall be made pro rata among the Trust Preferred Securities and the
Trust Common Securities of the applicable Hercules Trust based on their
respective Liquidation Amounts; provided, however, that if on any distribution
date or redemption date a Debenture Event of Default has occurred and is
continuing, no payment of any distribution on, or applicable redemption price
of, any of the Trust Common Securities of the applicable Hercules Trust, and no
other payment on account of the redemption, liquidation or other acquisition of
such Trust Common Securities, shall be made unless payment in full in cash of
all accumulated distributions on all of the outstanding Trust Preferred
Securities of such Hercules Trust for all distribution periods terminating on or
prior thereto, or in the case of payment of the applicable redemption price, the
full amount of such redemption price, shall have been made or provided for, and
all funds available to the Property Trustee shall first be applied to the
payment in full in cash of all distributions on, or applicable redemption price
of, such Trust Preferred Securities then due and payable.
Upon the occurrence and continuance of an Event of Default under the
applicable Trust Agreement, the Company, as the Trust Common Securities Holder
of the applicable Hercules Trust, will be deemed to have waived any right to act
with respect to such Event of Default until the effect of such Event of Default
shall have been cured, waived or otherwise eliminated. Until any such Event of
Default has been so cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the holders of the Trust
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Preferred Securities of such Hercules Trust and not on behalf of the Company as
the Trust Common Securities Holder, and only the holders of such Trust Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.
EVENTS OF DEFAULT; NOTICE
The occurrence of a Debenture Event of Default (see "Description of Junior
Subordinated Debentures--Debenture Events of Default") will constitute an "Event
of Default" under the applicable Trust Agreement. Within ten Business Days after
the occurrence of an Event of Default under the applicable Trust Agreement
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the Trust Preferred Securities
of the applicable Hercules Trust, the Administrative Trustees and the Company,
as Sponsor, unless such Event of Default shall have been cured or waived.
For a discussion of the limited circumstances in which holders of Trust
Preferred Securities may bring a Direct Action against the Company, see
"Description of Junior Subordinated Debentures--Enforcement of Certain Rights by
Holders of Trust Preferred Securities."
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default has occurred and is continuing, any
Issuer Trustee may be removed at any time by the Company as the Trust Common
Securities Holder of the applicable Hercules Trust. If a Debenture Event of
Default has occurred and is continuing, the Property Trustee and the Delaware
Trustee may be removed at such time only by the holders of a majority in
liquidation amount of the outstanding Trust Preferred Securities of the
applicable Hercules Trust. In no event will the holders of the Trust Preferred
Securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Company as the Trust Common Securities Holder. No resignation or removal of an
Issuer Trustee, and no appointment of a successor trustee, shall be effective
until the acceptance of appointment by the successor trustee in accordance with
the provisions of the applicable Trust Agreement.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Issuer Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee under the
applicable Trust Agreement, provided such Person shall be otherwise qualified
and eligible.
MERGERS, CONVERSIONS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF A
HERCULES TRUST
A Hercules Trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any corporation or
other Person, except as described below or as otherwise described under
"--Liquidation of a Hercules Trust and Distribution of Junior Subordinated
Debentures." A Hercules Trust may, at the request of the Company, as Sponsor,
with the consent of the Administrative Trustees but without the consent of the
holders of its Trust Preferred Securities, merge with or into, convert into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such successor
entity either (a) expressly assumes all of the
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obligations of such Hercules Trust with respect to the Trust Securities of such
Hercules Trust or (b) substitutes for the Trust Securities of such Hercules
Trust other securities having substantially the same terms as such Trust
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as such Trust Securities rank in priority with respect to distributions
and payments upon liquidation, redemption and otherwise, (ii) the Company
expressly appoints a trustee of such successor entity possessing the same powers
and duties as the Property Trustee with respect to the related Junior
Subordinated Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on each
national securities exchange or other organization on which the Trust Securities
of such Hercules Trust are then listed, if any, (iv) such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Trust Securities (including any Successor Securities) of such Hercules
Trust or the related Junior Subordinated Debentures to be downgraded or placed
under surveillance or review by any nationally recognized statistical rating
organization, (v) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Trust Securities (including any
Successor Securities) of such Hercules Trust in any material respect (other than
any dilution of such holders' interests in the new entity), (vi) such successor
entity has a purpose substantially identical to that of such Hercules Trust,
(vii) prior to such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Company has received an opinion
from independent counsel to such Hercules Trust experienced in such matters to
the effect that (a) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Trust Securities (including any
Successor Securities) of such Hercules Trust in any material respect (other than
any dilution of such holders' interests in the new entity), and (b) following
such merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither such Hercules Trust nor such successor entity will be
required to register as an investment company under the Investment Company Act
of 1940, as amended (the "Investment Company Act") and (viii) the Company or any
permitted successor or assignee owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the applicable
Guarantee and the applicable guarantee for the benefit of the owner of the
Common Securities of such Hercules Trust. Notwithstanding the foregoing, a
Hercules Trust shall not, except with the consent of each holder of its Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause such Hercules Trust or the successor entity not to be classified as
a grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF A TRUST AGREEMENT
Except as provided below and under "--Mergers, Conversions,
Consolidations, Amalgamations or Replacements of a Hercules Trust" and
"Description of Guarantees--Amendments and Assignment" and as otherwise required
by law and the applicable Trust Agreement, the holders of Trust Preferred
Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Trust Securities of the applicable Hercules Trust, (i) to cure
any ambiguity, correct or supplement any provisions in such Trust Agreement that
may be inconsistent with any other provision, or to make any other provisions
with respect to matters or questions arising under such Trust Agreement, which
shall not be inconsistent with the other provisions of such Trust Agreement, or
(ii) to modify, eliminate or add to any provisions of such Trust Agreement to
such extent as shall be necessary to ensure that such Hercules Trust will be
classified for United States federal income tax purposes as a grantor trust at
all times that any of its Trust Securities are outstanding or to ensure
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that such Hercules Trust will not be required to register as an "investment
company" under the Investment Company Act; provided, however, that in each case,
such action shall not adversely affect in any material respect the interests of
the holders of such Trust Securities. A Trust Agreement may be amended by the
Issuer Trustees and the Company (i) with the consent of holders of a majority in
Liquidation Amount of the outstanding Trust Securities of the applicable
Hercules Trust, and (ii) upon receipt by the Issuer Trustees of an opinion of
counsel experienced in such matters to the effect that such amendment or the
exercise of any power granted to the Issuer Trustees in accordance with such
amendment will not affect such Hercules Trust's status as a grantor trust for
United States federal income tax purposes or such Hercules Trust's exemption
from status as an "investment company" under the Investment Company Act;
provided, however, that, without the consent of each holder of such Trust
Securities, such Trust Agreement may not be amended to (i) change the
distribution rate (or manner of calculation of the distribution rate), amount,
timing or currency or otherwise adversely affect the method of any required
payment, (ii) change the purpose of the applicable Hercules Trust, (iii)
authorize the issuance of any additional beneficial interests in such Hercules
Trust, (iv) change the conversion, exchange or redemption provisions, (v) change
the conditions precedent for the Company to elect to dissolve such Hercules
Trust and distribute the related Junior Subordinated Debentures to the holders
of such Trust Securities, (vi) change the Liquidation Distribution or other
provisions relating to the distribution of amounts payable upon the dissolution
and liquidation of such Hercules Trust, (vii) affect the limited liability of
any holder of such Trust Securities or (viii) restrict the right of a holder of
such Trust Securities to institute suit for the enforcement of any required
payment on or after the due date therefor or for the conversion or exchange of
such Trust Securities in accordance with their terms.
So long as any Junior Subordinated Debentures are held by the Property
Trustee, the Issuer Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to such Debenture Trustee, or
execute any trust or power conferred on the Debenture Trustee, with respect to
the Junior Subordinated Debentures, (ii) waive certain past defaults under the
Junior Subordinated Debenture Indenture, (iii) exercise any right to rescind or
annul a declaration of acceleration of the maturity of the principal of such
Junior Subordinated Debentures or (iv) consent to any amendment, modification or
termination of the Junior Subordinated Debenture Indenture or such Junior
Subordinated Debentures where such consent shall be required, without, in each
case, obtaining the prior approval of the holders of a majority in Liquidation
Amount of all outstanding Trust Preferred Securities of the applicable Hercules
Trust; provided, however, that where a consent under the Junior Subordinated
Debenture Indenture would require the consent of each holder of Junior
Subordinated Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior approval of each holder of the related Trust
Preferred Securities. The Issuer Trustees shall not revoke any action previously
authorized or approved by a vote of the holders of Trust Preferred Securities
except by subsequent vote of such holders. The Property Trustee shall notify
each holder of Trust Preferred Securities of any notice of default with respect
to the related Junior Subordinated Debentures. In addition to obtaining
approvals of holders of Trust Preferred Securities referred to above, prior to
taking any of the foregoing actions, the Issuer Trustees shall obtain an opinion
of counsel experienced in such matters to the effect that the applicable
Hercules Trust will not be classified as an association taxable as a corporation
for United States federal income tax purposes on account of such action.
Any required approval of holders of Trust Preferred Securities may be
given at a meeting of such holders convened for such purpose or pursuant to
written consent. The Property Trustee will cause a notice of any meeting at
which holders of Trust Preferred Securities are entitled to vote to be given to
each holder of record of Trust Preferred Securities in the manner set forth in
the applicable Trust Agreement.
Notwithstanding that holders of Trust Preferred Securities are entitled to
vote or consent under any of the circumstances referred to above, any Trust
Preferred Securities that are owned by the Company or any
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affiliate of the Company shall, for purposes of such vote or consent, be treated
as if they were not outstanding.
GLOBAL TRUST PREFERRED SECURITIES
If specified in the applicable Prospectus Supplement, Trust Preferred
Securities may be represented by one or more global certificates deposited with,
or on behalf of, DTC (or other Depositary identified in such Prospectus
Supplement) or a nominee thereof, in each case for credit to an account of a
participant in DTC (or other Depositary). The identity of the Depositary and the
specific terms of the depositary arrangements with respect to the Trust
Preferred Securities to be represented by one or more global certificates will
be described in the applicable Prospectus Supplement. However, unless otherwise
specified in the applicable Prospectus Supplement, DTC will be the Depositary
and the depositary arrangements described with respect to the Debt Securities
will apply to such Trust Preferred Securities as well, except all references to
the Company shall include the Hercules Trusts and all references to the
applicable Indenture will refer to the applicable Trust Agreement. See
"Description of Debt Securities--Description of the Senior Debt Securities and
Subordinated Debt Securities--Global Debt Securities."
PAYMENT AND PAYING AGENT
Payments in respect of any global certificate representing Trust
Preferred Securities shall be made to Cede & Co. as nominee of DTC (or other
applicable Depositary or its nominee), which shall credit the relevant accounts
at DTC (or such other Depositary) on the applicable payment dates, while
payments in respect of Trust Preferred Securities in certificated form shall be
made by check mailed to the address of the holder entitled thereto as such
address shall appear on the register. The Paying Agent shall initially be the
Property Trustee and any co-paying agent chosen by the Property Trustee and
acceptable to the Administrative Trustees and the Company. The Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' prior written notice
to the Property Trustee, the Administrative Trustees and the Company. In the
event that the Property Trustee shall no longer be the Paying Agent, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company acceptable to the Administrative Trustees and the Company) to act
as Paying Agent.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as registrar and transfer agent for the
Trust Preferred Securities.
Registration of transfers of Trust Preferred Securities will be effected
without charge by or on behalf of the applicable Hercules Trust, but upon
payment of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. A Hercules Trust will not be required
to register or cause to be registered the transfer of its Trust Preferred
Securities after they have been converted, exchanged, redeemed or called for
redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of
an Event of Default under the applicable Trust Agreement, will undertake to
perform only such duties as are specifically set forth in such Trust Agreement
and, during the continuance of such Event of Default, must exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to the foregoing, the Property
Trustee will not be under any obligation to exercise any of the powers vested in
it by such Trust Agreement at the request of any holder of the related Trust
Securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby. If no such
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Event of Default has occurred and is continuing and the Property Trustee is
required to decide between alternative causes of action, construe ambiguous
provisions in such Trust Agreement or is unsure of the application of any
provision of such Trust Agreement, and the matter is not one on which holders of
Trust Preferred Securities or Trust Common Securities are entitled under such
Trust Agreement to vote, then the Property Trustee shall take such action as is
directed by the Company and if not so directed, shall take such action as it
deems advisable and in the best interests of the holders of the related Trust
Securities and will have no liability except for its own bad faith, negligence
or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate each Hercules Trust in such a way that (i) such
Hercules Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act, (ii) such Hercules Trust will be
classified as a grantor trust for United States federal income tax purposes and
(iii) the related Junior Subordinated Debentures will be treated as indebtedness
of the Company for United States federal income tax purposes. The Company and
the Administrative Trustees are authorized to take any action, not inconsistent
with applicable law, the certificate of trust of the applicable Hercules Trust
or the applicable Trust Agreement, that the Administrative Trustees determine in
their discretion to be necessary or desirable for such purposes, as long as such
action does not materially adversely affect the interests of the holders of the
related Trust Securities.
Holders of Trust Preferred Securities will not have any preemptive or
similar rights.
A Hercules Trust may not borrow money, issue debt, execute mortgages or
pledge any of its assets.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Company concurrently
with the issuance by a Hercules Trust of its Trust Preferred Securities for the
benefit of the holders from time to time of such Trust Preferred Securities and
will be held for such holders by The Chase Manhattan Bank, as trustee (the
"Guarantee Trustee"). Each Guarantee has been qualified as an indenture under
the Trust Indenture Act and is subject to, and governed by, the Trust Indenture
Act. This summary of certain terms and provisions of a Guarantee does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of such Guarantee, including the definitions
therein of certain terms, and those made a part of such Guarantee by the Trust
Indenture Act.
GENERAL
The Company will irrevocably agree to pay in full on a subordinated basis,
to the extent set forth herein, the Guarantee Payments (as defined below) to the
holders of the related Trust Preferred Securities, as and when due, regardless
of any defense, right of set-off or counterclaim that the applicable Hercules
Trust may have or assert other than the defense of payment. The following
payments (the "Guarantee Payments") with respect to Trust Preferred Securities,
to the extent not paid by or on behalf of the applicable Hercules Trust, will be
subject to the applicable Guarantee: (i) any accumulated distributions required
to be paid on such Trust Preferred Securities, to the extent that such Hercules
Trust has funds legally available therefor at such time, (ii) the applicable
redemption price with respect to such Trust Preferred Securities called for
redemption, to the extent that such Hercules Trust has funds legally available
therefor at such time, or (iii) upon a voluntary or involuntary dissolution and
liquidation of such Hercules Trust (other than in connection with the
distribution of the related Junior Subordinated Debentures to holders of such
Trust Preferred
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Securities or the redemption, conversion or exchange of such Trust Preferred
Securities), the lesser of (a) the amounts due upon the dissolution and
liquidation of such Hercules Trust, to the extent that such Hercules Trust has
funds legally available therefor at the time and (b) the amount of assets of
such Hercules Trust remaining available for distribution to holders of its Trust
Preferred Securities after satisfaction of liabilities to creditors of such
Hercules Trust as required by applicable law. The Company's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Company to the holders of the Trust Preferred Securities entitled thereto or
by causing the applicable Hercules Trust to pay such amounts to such holders.
The Company will, through the applicable Guarantee, the applicable Trust
Agreement, the related Junior Subordinated Debentures and the Junior
Subordinated Debenture Indenture, taken together, fully, irrevocably and
unconditionally guarantee all of the applicable Hercules Trust's obligations
under its Trust Preferred Securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
such guarantee. It is only the combined operation of these documents that has
the effect of providing a full, irrevocable and unconditional guarantee of a
Hercules Trust's obligations under its Trust Preferred Securities.
RANKING
Each Guarantee will constitute an unsecured obligation of the Company and
will rank (i) subordinate and junior in right of payment to all other
liabilities of the Company, including the Senior Debt Securities, the
Subordinated Debt Securities and the Junior Subordinated Debentures, except
those made pari passu or subordinate by their terms, and (ii) senior to all
capital stock now or hereafter issued by the Company and to any guarantee now or
hereafter entered into by the Company in respect of any of its capital stock.
The Trust Agreements provide that each holder of Trust Preferred Securities by
acceptance thereof agrees to the subordination provisions and other terms of the
related Guarantee. Each Guarantee will rank pari passu with all other guarantees
(collectively, the "Other Guarantees") to be issued by the Company with respect
to securities of Other Hercules Trusts.
The Guarantees will not limit the amount of secured or unsecured debt,
including Senior Indebtedness As Defined In the Junior Subordinated Debenture
Indenture, that may be incurred by the Company or any of its subsidiaries.
GUARANTEE OF PAYMENT
Each Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under such Guarantee without first
instituting a legal proceeding against any other person or entity). A Guarantee
will not be discharged except by payment of the related Guarantee Payments in
full to the extent not paid by the applicable Hercules Trust or upon
distribution of its Trust Preferred Securities to the holders of the related
Junior Subordinated Debentures.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the related Trust Preferred Securities (in which case
no approval will be required), the applicable Guarantee may not be amended
without the prior approval of the holders of a majority of the Liquidation
Amount of such outstanding Trust Preferred Securities. The manner of obtaining
any such approval will be as set forth under "Description of the Trust Preferred
Securities--Voting Rights; Amendment of a Trust Agreement." All
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guarantees and agreements contained in a Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Company and shall inure
to the benefit of the holders of the related Trust Preferred Securities then
outstanding.
EVENTS OF DEFAULT
An event of default under a Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder, provided
that, except with respect to a default in respect of any Guarantee Payment, the
Company shall have received notice of such default and shall not have cured such
default within 60 days of such receipt. The holders of a majority in Liquidation
Amount of the related Trust Preferred Securities will have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of the applicable Guarantee or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under such
Guarantee.
If the Guarantee Trustee fails to enforce a Guarantee, any holder of the
related Trust Preferred Securities may institute a legal proceeding directly
against the Company to enforce its rights under such Guarantee without first
instituting a legal proceeding against the applicable Hercules Trust, the
Guarantee Trustee or any other person or entity.
TERMINATION
A Guarantee will terminate and be of no further force and effect upon full
payment of the applicable redemption price of the related Trust Preferred
Securities, upon full payment of all amounts due upon the dissolution and
liquidation of the applicable Hercules Trust or upon the conversion or exchange
of all of the related Trust Preferred Securities (whether upon distribution of
Junior Subordinated Debentures to the holders of such Trust Preferred Securities
or otherwise). A Guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any holder of the related Trust Preferred
Securities must restore payment of any sums paid under such Trust Preferred
Securities or such Guarantee.
GOVERNING LAW
The Guarantees will be governed by and construed in accordance with the
laws of the State of Delaware.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Company in performance of a Guarantee, will undertake to
perform only such duties as are specifically set forth in the Guarantees and,
during the continuance of such default, must exercise the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or her
own affairs. Subject to the foregoing, the Guarantee Trustee will not be under
any obligation to exercise any of the powers vested in it by a Guarantee at the
request of any holder of the related Trust Preferred Securities unless it is
offered reasonable indemnity against the costs, expenses and liabilities that
might be incurred thereby.
LIMITED PURPOSE OF THE HERCULES TRUSTS
The Trust Preferred Securities will represent preferred beneficial
interests in the applicable Hercules Trust, and each Hercules Trust exists for
the sole purpose of issuing and selling its Trust Securities, using
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the proceeds from the sale of its Trust Securities to acquire the related Junior
Subordinated Debentures of the Company and engaging in only those other
activities necessary, advisable or incidental thereto.
RIGHTS UPON DISSOLUTION
Unless the Junior Subordinated Debentures are distributed to holders of
the related Trust Securities, upon any voluntary or involuntary dissolution and
liquidation of the applicable Hercules Trust, after satisfaction of the
liabilities of creditors of such Hercules Trust as required by applicable law,
the holders of such Trust Securities will be entitled to receive, out of assets
held by such Hercules Trust, the Liquidation Distribution in cash. See
"Description of Trust Preferred Securities--Liquidation of a Hercules Trust and
Distribution of Junior Subordinated Debentures." Upon any voluntary or
involuntary liquidation or bankruptcy of the Company, the Property Trustee, as
holder of the Junior Subordinated Debentures, would be a creditor of the
Company, subordinated in right of payment to all Senior Indebtedness As Defined
In the Junior Subordinated Debenture Indenture as set forth in the Junior
Subordinated Debenture Indenture, but entitled to receive payment in full of
principal and premium, if any, and interest in respect of such Junior
Subordinated Debentures, before any stockholders of the Company receive payments
or distributions.
DESCRIPTION OF PURCHASE CONTRACTS
AND PURCHASE UNITS
The Company may issue Purchase Contracts, representing contracts
obligating holders to purchase from the Company, and the Company to sell to the
holders, Purchase Contract Securities at a future date or dates. The price per
Purchase Contract Security may be fixed at the time the Purchase Contracts are
issued or may be determined by reference to a specific formula set forth in the
Purchase Contracts. The Purchase Contracts may be issued separately or as a part
of units ("Purchase Units") consisting of a Purchase Contract and either (i)
Senior Debt Securities, Subordinated Debt Securities or Junior Subordinated
Debentures, (ii) debt obligations of third parties, including U.S. Treasury
securities, or (iii) Trust Preferred Securities of a Hercules Trust, securing
the holder's obligations to purchase the Purchase Contract Security under the
Purchase Contract. The Purchase Contracts may require the Company to make
periodic payments to the holders of the Purchase Units or vice versa and such
payments may be unsecured or prefunded on some basis. The Purchase Contracts may
require holders to secure their obligations thereunder in a specified manner and
in certain circumstances the Company may deliver newly issued prepaid purchase
contracts ("Prepaid Securities") upon transfer by a holder to the Company of any
collateral securing such holder's obligations under the original Purchase
Contract.
The applicable Prospectus Supplement will describe the terms of any
Purchase Contracts or Purchase Units and, if applicable, Prepaid Securities.
PLAN OF DISTRIBUTION
The Company and/or the Hercules Trusts may sell the Offered Securities
(i) through underwriters or dealers; (ii) through agents; (iii) directly to
purchasers; or (iv) through a combination of any such methods of sale. Any such
underwriter, dealer or agent may be deemed to be an underwriter within the
meaning of the Securities Act. The Prospectus Supplement relating to a series of
the Offered Securities will set forth its offering terms, including the name or
names of any underwriters, dealers or agents, the purchase price of the Offered
Securities and the proceeds to the Company and/or the Hercules Trusts from such
sale, any underwriting discounts, commissions and other items constituting
underwriters' compensation, any initial
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public offering price and any underwriting discounts, commissions and other
items allowed or reallowed or paid to dealers or agents and any securities
exchanges on which the Offered Securities may be listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed price or prices, which may be changed, or at market prices prevailing at
the time of sale, or at prices related to such prevailing market prices, or at
negotiated prices. The Offered Securities may be offered to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more of such firms. Unless otherwise set forth in a
Prospectus Supplement, the obligations of the underwriters to purchase the
Offered Securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all the Offered Securities if any are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Any agent involved in the offer or sale of the Offered Securities in
respect of which this Prospectus is delivered will be named, and any commissions
payable by the Company to such agent will be set forth, in a Prospectus
Supplement. Unless otherwise indicated in a Prospectus Supplement, any such
agent will be acting on a reasonable efforts basis for the period of its
appointment.
If so indicated in a Prospectus Supplement, the Company will authorize
underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase Offered Securities from the Company and/or the Hercules
Trusts at the public offering price set forth in such 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 any conditions
set forth in a Prospectus Supplement and the Prospectus Supplement will set
forth the commission payable for solicitation of such contracts. The
underwriters and other persons soliciting such contracts will have no
responsibility for the validity or performance of any such contracts.
Offered Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("marketing firms"), acting as principals for their own
accounts or as agents for the Company and/or a Hercules Trust. Any remarketing
firm will be identified and the terms of its agreement, if any, with the Company
and/or a Hercules Trust and its compensation will be described in the Prospectus
Supplement. Remarketing firms may be deemed to be underwriters in connection
with their remarketing of Offered Securities.
Underwriters, dealers, remarketing firms and agents may be entitled
under agreements entered into with the Company and/or the Hercules Trusts to
indemnification by the Company and/or the Hercules Trusts against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
by the Company and/or the Hercules Trusts to payments they may be required to
make in respect thereof, and may be customers of, engage in transactions with or
perform services for the Company in the ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the Offered Securities being
offered hereby will be passed upon for the Company by Richard G. Dahlen,
Esquire, Vice President and General Counsel of the Company, and by Ballard Spahr
Andrews & Ingersoll, LLP, Philadelphia, Pennsylvania, and for the Hercules
Trusts by Richards, Layton & Finger, P.A., Wilmington, Delaware, unless
otherwise specified in
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a Prospectus Supplement. Mr. Dahlen owned beneficially, as of September 30,
1998, 15,333 shares of restricted stock under the Hercules Incorporated Long
Term Incentive Compensation Plan (the "LTICP"), 244 shares of Common Stock under
the Hercules Incorporated Savings and Investment Plan, and the right to acquire
within 60 days hereof 25,200 shares under options held pursuant to the LTICP.
EXPERTS
The consolidated financial statements of the Company and its
subsidiaries which are incorporated by reference in the Company's most recent
Annual Report on Form 10-K have been audited and reported upon by
PricewaterhouseCoopers LLP, independent accountants, and are incorporated by
reference in this Prospectus. Such financial statements are incorporated herein
in reliance on the report of PricewaterhouseCoopers LLP, given on the authority
of such firm as experts in accounting and auditing.
The consolidated financial statements of BetzDearborn as of December 31,
1997 and 1996 and for each of the three years in the period ended December 31,
1997, appearing in the Company's Current Report on Form 8-K dated October 15,
1998, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such financial statements have been incorporated by reference herein
in reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated amount of various expenses
in connection with the sale and distribution of the securities being registered:
<TABLE>
<S> <C>
SEC registration fee $ 796,500
Printing and engraving expenses 100,000
Legal fees and expenses 300,000
Accounting fees and expenses 100,000
Trustee fees 100,000
Blue sky fees and expenses 10,000
Rating agency fees --
Miscellaneous 68,500
----------
Total $1,475,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the provisions of the Restated Certificate of Incorporation of
the Company, each person who is or was a director or officer of the Company
shall be indemnified by the Company as of right to the full extent permitted or
authorized by the Delaware General Corporation Law.
Under such law, to the extent that such a person is successful on the
merits or otherwise in defense of any action, suit, or proceeding brought
against him by reason of the fact that he is a director or officer of the
Company, he shall be indemnified against expenses, liability and loss including
attorneys' fees reasonably incurred in connection therewith.
If unsuccessful in defense of a third-party civil suit, or if such a
suit is settled, such a person shall be indemnified under such law against both
(1) expenses (including attorneys' fees) and (2) judgments, fines, penalties and
amounts paid in settlement if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interest of the
Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the
Company, or if such suit is settled, such a person shall be indemnified under
such law only against expenses including attorney's fees incurred in the defense
or settlement of such suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interest of the
Company except that if such a person is adjudged to be liable in such a suit for
negligence or misconduct in the performance of his duty to the Company, he
cannot be indemnified unless the Court of Chancery of the State of Delaware or
any other court in which such action or suit was brought determines that he is
fairly and reasonably entitled to indemnity for such expenses.
Under provisions of the Restated Certificate of Incorporation, a
director of the Company shall have no personal liability to the Company or its
stockholders for monetary damages for breach of his fiduciary duty as a director
to the full extent permitted by the Delaware General Corporation Law, as it may
be amended from time to time.
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The Company has purchased liability insurance policies which provide
specified coverage for certain liabilities incurred by officers and directors in
their capacities as such.
The stockholders of the Company have also approved a form of
indemnification agreement to be entered into between the Company and its
directors and officers, which provides for indemnification to the extent
permitted by Delaware law and, in addition, sets forth the procedures for
determining entitlement to indemnification, the manner of the advancement of
expenses, remedies of the indemnitee and certain other matters of a similar
nature. The Company has entered into such agreements with all of its officers
and directors.
Each Amended & Restated Trust Agreement (a "Trust Agreement") of a
Hercules Trust provides that no Trustee, affiliate of any Trustee or any
officers, directors, stockholders, members, partners, employees, representatives
or agents of any Trustee or any employee or agent of such Hercules Trust or its
affiliates (each, an "Indemnified Person") shall be liable, responsible or
accountable in damages or otherwise to any employee or agent of such Hercules
Trust or its affiliates, or any officers, directors, stockholders, employees,
representatives or agents of the Company or its affiliates or to any holders of
Trust Securities of such Hercules Trust for any loss, damage or claim incurred
by reason of any act or omission performed or omitted by such Indemnified Person
in good faith on behalf of such Hercules Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by the Trust Agreement of such Hercules Trust or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or, in
the case of the Property Trustee of such Hercules Trust, negligence) or willful
misconduct with respect to such acts or omissions. Each Trust Agreement also
provides that, to the fullest extent permitted by applicable law, the Company
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of such Hercules Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by such Trust Agreement, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of gross negligence (or, in the case of the
Property Trustee of such Hercules Trust, negligence) or willful misconduct with
respect to such acts or omissions. Each Trust Agreement further provides that to
the fullest extent permitted by applicable law, expenses (including legal fees)
incurred by an Indemnified Person in defending any claim, demand, action, suit
or the final disposition of such claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Company of an undertaking by or on behalf of the Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified pursuant to such Trust Agreement.
The foregoing summaries are necessarily subject to the complete text of
the relevant statute or document.
Any underwriters, dealers or agents who execute any of the Agreements
referred to in Exhibit 1 to this Registration Statement will agree to indemnify
the Company's directors and its officers who signed the Registration Statement
against certain liabilities which might arise under the Securities Act of 1933,
as amended, (the "Securities Act"), from information furnished to the Company by
or on behalf of such indemnifying party.
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ITEM 16. EXHIBITS
A complete listing of exhibits required is given in the Exhibit Index
which precedes the exhibits filed with this Registration Statement.
ITEM 17. UNDERTAKINGS
Each Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registration Statement.
(i) to include any prospectus required by Section
10(a) (3) of the Securities Act.
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration
Statement; and
(iii)to include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (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 by a Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference in this
Registration Statement.
(2) That, for purposes of determining any liability under the
Securities Act, 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered hereby which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of a Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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.
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Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, trustees and controlling persons of
a Registrant pursuant to the provisions described under Item 15 above or
otherwise, each Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by a Registrant of expenses incurred or paid by a director, officer or
controlling person of a Registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer, trustee or controlling
person in connection with the securities being registered, such 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
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE> 57
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Wilmington, State of Delaware, on
October 29, 1998.
HERCULES INCORPORATED
By: /s/ R. Keith Elliott
---------------------------
R. Keith Elliott, Chairman
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ R. Keith Elliott Director, Principal Executive Officer October 29, 1998
- ------------------------ (Chairman and Chief Executive Officer)
R. Keith Elliott
/s/ George MacKenzie Principal Financial Officer October 29, 1998
- ------------------------ (Senior Vice President and
George MacKenzie Chief Financial Officer)
* Principal Accounting Officer October 29, 1998
- ------------------------ (Vice President and Controller)
Vikram Jog
* Director October 29, 1998
- ------------------------
Vincent J. Corbo
* Director October 29, 1998
- ------------------------
Richard M. Fairbanks
* Director October 29, 1998
- ------------------------
Edith E. Holiday
</TABLE>
II-5
<PAGE> 58
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
* Director October 29, 1998
- ----------------------------
Robert G. Jahn
* Director October 29, 1998
- ----------------------------
Gaynor N. Kelley
* Director October 29, 1998
- ----------------------------
Ralph L. MacDonald, Jr.
* Director October 29, 1998
- ----------------------------
H. Eugene McBrayer
* Director October 29, 1998
- ------------------------
Peter McCausland
* Director October 29, 1998
- ----------------------------
Paula A. Sneed
* By: /s/ Israel J. Floyd
- ----------------------------
(Israel J. Floyd as
attorney-in-fact for the
persons indicated)
</TABLE>
II-6
<PAGE> 59
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
Director
- ---------------------------- October __, 1998
William R. Cook
Director
- ---------------------------- October __, 1998
John G. Drosdick
Director
- ---------------------------- October __, 1998
Alan R. Hirsig
Director
- ---------------------------- October __, 1998
John A.H. Shober
</TABLE>
<PAGE> 60
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Hercules
Trust I, Hercules Trust II, Hercules Trust III and Hercules Trust IV certify
that they have reasonable grounds to believe that they meet all the requirements
for filing on Form S-3 and have duly caused this Amendment No. 1 to the
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized in the City of Wilmington, State of Delaware, on
October 29, 1998.
Hercules Trust I
By: Hercules Incorporated, as Sponsor
By: /s/ George MacKenzie
---------------------------
Name: George MacKenzie
Title: Senior Vice President and
Chief Financial Officer
Hercules Trust II
By: Hercules Incorporated, as Sponsor
By: /s/ George MacKenzie
---------------------------
Name: George MacKenzie
Title: Senior Vice President and
Chief Financial Officer
Hercules Trust III
By: Hercules Incorporated, as Sponsor
By: /s/ George MacKenzie
---------------------------
Name: George MacKenzie
Title: Senior Vice President and
Chief Financial Officer
Hercules Trust IV
By: Hercules Incorporated, as Sponsor
By: /s/ George MacKenzie
---------------------------
Name: George MacKenzie
Title: Senior Vice President and
Chief Financial Officer
II-7
<PAGE> 61
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
EXHIBITS
TO
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
HERCULES INCORPORATED
HERCULES TRUST I
HERCULES TRUST II
HERCULES TRUST III
HERCULES TRUST IV
<PAGE> 62
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
1.1+ Form of Underwriting Agreement (Senior Debt Securities, Subordinated Debt
Securities, Preferred Stock, Depositary Shares, Common Stock and Warrants)
1.2+ Form of Underwriting Agreement (Trust Preferred Securities)
1.3+ Form of Underwriting Agreement (Purchase Contracts)
2.1 Agreement and Plan of Merger, dated as of July 30, 1998, by and among
BetzDearborn Inc., Hercules Incorporated and Water Acquisition Co. (incorporated
by reference to Exhibit 2.1 of BetzDearborn's Current Report on Form 8-K, dated
July 30, 1998)
4.1 Restated Certificate of Incorporation of Hercules Incorporated as revised and
amended July 6, 1988 (incorporated by reference to Exhibit 3-A of the Company's Annual
Report on Form 10-K, filed March 26, 1993)
4.1a** Certificate of Amendment to the Restated Certificate of
Incorporation of Hercules Incorporated as revised and amended
October 24, 1995
4.2* Form of Senior Debt Indenture between the Company and The Chase Manhattan Bank, as
Trustee
4.3* Form of Subordinated Debt Indenture between the Company and The Chase
Manhattan Bank, as Trustee
4.4* Form of Junior Subordinated Debenture Indenture between the Company and The
Chase Manhattan Bank, as Trustee
4.5** Certificate of Trust of Hercules Trust I
4.6** Certificate of Trust of Hercules Trust II
4.7** Certificate of Trust of Hercules Trust III
4.8** Certificate of Trust of Hercules Trust IV
4.9** Trust Agreement of Hercules Trust I
4.10** Trust Agreement of Hercules Trust II
4.11** Trust Agreement of Hercules Trust III
4.12** Trust Agreement of Hercules Trust IV
4.13* Form of Amended and Restated Trust Agreement of Hercules Trust I
4.14* Form of Amended and Restated Trust Agreement of Hercules Trust II
4.15* Form of Amended and Restated Trust Agreement of Hercules Trust III
4.16* Form of Amended and Restated Trust Agreement of Hercules Trust IV
4.17+ Form of Senior Debt Security
4.18+ Form of Subordinated Debt Security
4.19+ Form of Junior Subordinated Debenture
4.20* Form of Hercules Common Stock Certificate
4.21+ Form of Hercules Preferred Stock Certificate
4.22+ Form of Deposit Agreement
4.23+ Form of Warrant Agreement
4.24* Form of Trust Preferred Security of Hercules Trust I (included in Exhibit 4.13)
4.25* Form of Trust Preferred Security of Hercules Trust II (included in Exhibit 4.14)
4.26* Form of Trust Preferred Security of Hercules Trust III (included in Exhibit 4.15)
</TABLE>
<PAGE> 63
<TABLE>
<S> <C>
4.27* Form of Trust Preferred Security of Hercules Trust IV (included in Exhibit 4.16)
4.28* Form of Preferred Securities Guarantee Agreement with respect to Hercules Trust I
4.29* Form of Preferred Securities Guarantee Agreement with respect to Hercules Trust II
4.30* Form of Preferred Securities Guarantee Agreement with respect to Hercules Trust III
4.31* Form of Preferred Securities Guarantee Agreement with respect to Hercules Trust IV
4.32+ Form of Purchase Contract between Hercules and the Purchase Contract Agent
named therein
4.33+ Form of Purchase Unit
4.34+ Form of Pledge Agreement between Hercules and the Collateral Agent and Purchase
Contract Agent named therein
5.1* Opinion of Ballard Spahr Andrews & Ingersoll, LLP regarding the legality of the
securities being registered by the Company
5.2* Opinion of Richards, Layton & Finger, P.A. regarding the legality of the securities being
registered by Hercules Trust I
5.3* Opinion of Richards, Layton & Finger, P.A. regarding the legality of the securities being
registered by Hercules Trust II
5.4* Opinion of Richards, Layton & Finger, P.A. regarding the legality of the securities being
registered by Hercules Trust III
5.5* Opinion of Richards, Layton & Finger, P.A. regarding the legality of the securities being
registered by Hercules Trust IV
10.1 Credit Agreement dated as of October 15, 1998, among the Company and NationsBank N.A., as
Administrative Agent, and the lenders party thereto (incorporated by reference to Exhibit 10.1
to the Company's Current Report on Form 8-K dated October 15, 1998)
12.1* Statement re Computation of ratio of earnings to fixed charges
23.1* Consent of PricewaterhouseCoopers, LLP
23.2* Consent of Ernst & Young LLP
23.3* Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in Exhibit 5.1)
23.4* Consent of Richards, Layton & Finger (included in Exhibits 5.2, 5.3, 5.4 and 5.5)
24.1** Powers of Attorney (included on signature page)
24.2** Powers of Attorney for the Company, as Sponsor, to sign the Registration Statement on
behalf of Hercules Trust I, Hercules Trust II, Hercules Trust III and Hercules Trust IV
(included in Exhibits 4.9, 4.10, 4.11 and 4.12 respectively)
25.1* Form T-1, Statement of Eligibility of Trustee of The Chase Manhattan Bank, as Trustee
under the Senior Debt Indenture
25.2* Form T-1, Statement of Eligibility of Trustee of The Chase
Manhattan Bank, as Trustee under the Subordinated Debt Indenture
25.3* Form T-1, Statement of Eligibility of Trustee of The Chase
Manhattan Bank, as Trustee under the Junior Subordinated Debenture Indenture
25.4* Form T-1, Statement of Eligibility of Trustee of The Chase
Manhattan Bank, as Trustee with respect to the Amended and Restated Trust
Agreement of Hercules Trust I
25.5* Form T-1, Statement of Eligibility of Trustee of The Chase
Manhattan Bank, as Trustee with respect to the Amended and Restated Trust
Agreement of Hercules Trust II
25.6* Form T-1, Statement of Eligibility of Trustee of The Chase Manhattan Bank,
as Trustee with respect to the Amended and Restated Trust
Agreement of Hercules Trust III
25.7* Form T-1, Statement of Eligibility of Trustee of The Chase Manhattan Bank,
as Trustee with respect to the Amended and Restated Trust Agreement of
Hercules Trust IV
25.8* Form T-1, Statement of Eligibility of Trustee of The Chase Manhattan Bank,
as Trustee under the Preferred Securities Guarantee of the Company with respect
to the Preferred Securities of Hercules Trust I
25.9* Form T-1, Statement of Eligibility of Trustee of The Chase Manhattan Bank,
as Trustee under the Preferred Securities Guarantee of the Company with respect
to the Preferred Securities of Hercules Trust II
</TABLE>
<PAGE> 64
<TABLE>
<S> <C>
25.10* Form T-1, Statement of Eligibility of Trustee of The Chase Manhattan Bank,
as Trustee under the Preferred Securities Guarantee of the Company with respect
to the Preferred Securities of Hercules Trust III
25.11* Form T-1, Statement of Eligibility of Trustee of The Chase Manhattan Bank, as
Trustee under the Preferred Securities Guarantee of the Company with respect to
the Preferred Securities of Hercules Trust IV
</TABLE>
+ To be filed by amendment or under a subsequent Current Report on Form 8-K.
* Filed herewith.
** Previously filed.
<PAGE> 1
HERCULES INCORPORATED, AS ISSUER
AND
THE CHASE MANHATTAN BANK, AS TRUSTEE
INDENTURE
DATED AS OF _________ __, ____
SENIOR DEBT SECURITIES
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
RECITALS OF THE COMPANY
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
Section 101 Definitions and Rules of Construction ................................ 1
Section 102 Certificate and Opinion as to Conditions Precedent ................... 10
Section 103 Statements Required in Certificate or Opinion ........................ 10
Section 104 Acts of Holders ...................................................... 10
Section 105 Notices to Trustee and Company ....................................... 12
Section 106 Notice to Holders of Securities; Waiver .............................. 12
Section 107 Communication by Holders with Other Holders. ......................... 13
Section 108 Language of Notices .................................................. 13
Section 109 Trust Indenture Act Controls ......................................... 13
Section 110 Effect of Headings and Table of Contents ............................. 13
Section 111 Successors and Assigns ............................................... 13
Section 112 Severability Clause .................................................. 13
Section 113 Benefits of Indenture ................................................ 14
Section 114 Governing Law ........................................................ 14
Section 115 Legal Holidays ....................................................... 14
Section 116 Counterparts ......................................................... 14
Section 117 No Recourse Against Others ........................................... 14
Section 118 No Adverse Interpretation of Other Agreements ........................ 14
ARTICLE TWO
SECURITY FORMS
Section 201 Forms Generally ...................................................... 15
Section 202 Form of Trustee's Certificate of Authentication ...................... 15
Section 203 Securities in Global Form ............................................ 15
ARTICLE THREE
THE SECURITIES
Section 301 Amount Unlimited; Issuable in Series ................................. 16
Section 302 Currency; Denominations .............................................. 19
Section 303 Execution, Authentication and Delivery ............................... 20
Section 304 Temporary Securities ................................................. 22
Section 305 Registrar and Paying and Conversion Agents ........................... 22
Section 306 Paying Agent to Hold Money in Trust .................................. 22
Section 307 List of Holders ...................................................... 22
Section 308 Transfer and Exchange ................................................ 24
Section 309 Replacement Securities ............................................... 25
Section 310 Book-Entry System .................................................... 26
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 311 Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved ...................... 27
Section 312 Persons Deemed Owners .................................................. 29
Section 313 Cancellation ........................................................... 29
Section 314 Compliance with Certain Laws and Regulations ........................... 30
Section 315 Return of Moneys Held by the Trustee and Paying Agent ..................
Unclaimed for Two Years ................................................ 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture ................................ 30
Section 402 Satisfaction, Discharge and Defeasance of Securities of any Series ..... 32
Section 403 Application of Trust Money. ............................................ 35
ARTICLE FIVE
DEFAULTS AND REMEDIES
Section 501 Events of Default ...................................................... 35
Section 502 Acceleration ........................................................... 36
Section 503 Other Remedies ......................................................... 37
Section 504 Waiver of Past Defaults ................................................ 37
Section 505 Control by Holders ..................................................... 38
Section 506 Limitation on Suits .................................................... 38
Section 507 Collection Suits by the Trustee ........................................ 39
Section 508 Trustee May File Proofs of Claim ....................................... 39
Section 509 Priorities ............................................................. 40
Section 510 Undertaking for Costs .................................................. 40
Section 511 Unconditional Right of Holders to Receive Principal,
Premium and Interest ................................................... 40
ARTICLE SIX
THE TRUSTEE
Section 601 Duties and Responsibilities of the Trustee .............................. 41
Section 602 Rights of the Trustee ................................................... 42
Section 603 Not Responsible for Recitals or Issuance of Securities .................. 43
Section 604 Notice of Defaults ...................................................... 43
Section 605 May Hold Securities ..................................................... 43
Section 606 Money Held in Trust ..................................................... 43
Section 607 Compensation and Indemnity .............................................. 43
Section 608 Eligibility; Disqualification ........................................... 44
Section 609 Resignation and Removal; Appointment of Successor. ...................... 44
Section 610 Acceptance of Appointment by Successor. ................................. 46
Section 611 Successor Trustee by Merger ............................................. 47
</TABLE>
ii
<PAGE> 4
ARTICLE SEVEN
REPORTS BY TRUSTEE AND COMPANY
Section 701 Reports by Trustee ........................................ 47
Section 702 Reports by Company ........................................ 47
ARTICLE EIGHT
SUCCESSOR CORPORATION
Section 801 When the Company May Merge, Etc. .......................... 47
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders ........ 48
Section 902 Supplemental Indentures with Consent of Holders ........... 50
Section 903 Compliance with Trust Indenture Act ....................... 51
Section 904 Revocation and Effect of Consents, Waivers and Actions .... 51
Section 905 Notation on or Exchange of Securities ..................... 51
Section 906 Execution of Supplemental Indentures ...................... 52
Section 907 Effect of Supplemental Indentures ......................... 52
ARTICLE TEN
COVENANTS
Section 1001 Payment of Principal, Premium and Interest ................ 52
Section 1002 Maintenance of Office or Agency ........................... 52
Section 1003 Money for Securities Payments to Be Held in Trust ......... 53
Section 1004 Additional Amounts ........................................ 54
Section 1005 Corporate Existence ....................................... 54
Section 1006 Purchase of Securities by Company or Subsidiary. .......... 54
Section 1007 Restrictions on Secured Debt. ............................. 55
Section 1008 Restrictions on Sale and Leaseback Transactions. .......... 56
Section 1009 Compliance Certificates ................................... 57
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101 Redemption: Notice to Trustee ............................. 57
Section 1102 Selection of Securities to be Redeemed .................... 58
Section 1103 Notice of Redemption ...................................... 58
Section 1104 Effect of Notice of Redemption ............................ 59
Section 1105 Deposit of Redemption Price ............................... 59
Section 1106 Securities Redeemed in Part ............................... 59
iii
<PAGE> 5
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article ................................. 60
Section 1202. Satisfaction of Sinking Fund Payments with Securities .... 60
Section 1203. Redemption of Securities for Sinking Fund ................ 61
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1301. Purposes for Which Meetings May Be Called ................ 61
Section 1302. Call, Notice and Place of Meetings ....................... 61
Section 1303. Persons Entitled to Vote at Meetings ..................... 62
Section 1304. Quorum; Action ........................................... 62
Section 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings .................................. 63
Section 1306. Counting Votes and Recording Action of Meetings .......... 63
iv
<PAGE> 6
Hercules Indenture
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ---------------- ---------
<S> <C>
Section310(a)(1) .......................................................... 303; 608
(a)(2) .......................................................... 303; 608
(a)(3) .......................................................... Not Applicable
(a)(4) .......................................................... Not Applicable
(a)(5) .......................................................... Not Applicable
(b) .......................................................... 608; 609
(c) .......................................................... Not Applicable
Section311 (a) .......................................................... Not Applicable
(b) .......................................................... Not Applicable
(c) .......................................................... Not Applicable
Section312(a) .......................................................... 307
(b) .......................................................... 107
(c) .......................................................... 107
Section313(a) .......................................................... 701
(b)(1) .......................................................... Not Applicable
(b)(2) .......................................................... Not Applicable
(c) .......................................................... 701
(d) .......................................................... 701
Section314(a) .......................................................... 702; 1009
(b) .......................................................... Not Applicable
(c)(1) .......................................................... 102; 103; 303
(c)(2) .......................................................... 102; 103; 303
(c)(3) .......................................................... Not Applicable
(d) .......................................................... Not Applicable
(e) .......................................................... 103
(f) .......................................................... Not Applicable
Section315(a) .......................................................... 601(b); 602
(b) .......................................................... 106; 602; 604
(c) .......................................................... 601(a); 602
(d) .......................................................... 601(c); 602
(e) .......................................................... 510
Section316(a)(1)(A)......................................................... 505
(a)(1)(B)........................................................ 502; 504
(a)(2) .......................................................... Not Applicable
(a)(last sentence)............................................... 101
(b) .......................................................... 511
(c) .......................................................... 104
Section317(a)(1) .......................................................... 507
(a)(2) .......................................................... 508
(b) .......................................................... 306; 1003
Section318(a) .......................................................... 109
(b) .......................................................... Not Applicable
(c) .......................................................... 109
</TABLE>
- ----------------------
Note: This reconciliation and tie sheet shall not, for any purpose,
be deemed to be a part of the Indenture.
v
<PAGE> 7
INDENTURE, dated as of _________ __, ____, between Hercules
Incorporated, a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), having its principal office at Hercules
Plaza, 1313 North Market Street, Wilmington, Delaware 19894-0001 and The Chase
Manhattan Bank, a banking corporation duly organized and existing under the laws
of the State of New York, as Trustee (the "Trustee"), having its Corporate Trust
Office at One Liberty Place, 52nd Floor, 1650 Market Street, Philadelphia,
Pennsylvania 19103.
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 senior unsecured
debentures, notes or other evidences of Indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount to bear such rates of interest,
to mature at such time or times, be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined), as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS AND RULES OF CONSTRUCTION .
(a) In addition to the following, certain terms used principally in
certain Articles hereof are defined in those Articles:
"Additional Amounts" means any additional amounts that are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified herein or therein and which
are owing to such Holders.
"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. When used with respect to any Person,
"control" means the power to direct the management and policies of such Person,
<PAGE> 8
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 303 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. 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.
"Bankruptcy Law" means Title 11 of the United States Code, or any
similar federal or state bankruptcy, insolvency, reorganization or other law for
the relief of debtors.
"Bearer Security" means any Security in the form set forth pursuant to
Section 301 or established pursuant to Section 201 which is payable to bearer.
"Board of Directors" means either the Board of Directors of the Company
or the Finance Committee of such Board or any other committee of such Board duly
authorized to act generally or in any particular respect for the Company
hereunder.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or the Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee or (ii) a certificate signed by the
authorized officer or officers to whom the Board of Directors has delegated its
authority, and in each case, delivered to the Trustee.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in the City of New York or Wilmington, Delaware
are authorized or required by law, regulation or executive order to close, or
any other day established as contemplated by Section 301.
"Cedel Bank, S.A." means Centrale de Livraison de Valeurs, S.A.
"Common Stock" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means Hercules Incorporated, a Delaware corporation, or any
successor thereto.
"Company Order" means a written request or order signed in the name of
the Company by an Officer of the Company and delivered to the Trustee.
"Consolidated Net Tangible Assets" means as of any particular time the
aggregate amount of assets after deducting therefrom (a) all current liabilities
and (b) all goodwill, patents, copyrights, trademarks, tradenames, unamortized
debt discount and expense and other like intangibles, all as shown
2
<PAGE> 9
in the most recent consolidated financial statements of the Company and its
Subsidiaries prepared in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the office of the Trustee for the
conduct of corporate trust business at which matters related to this Indenture
are administered. Initially the Corporate Trust Office will be at One Liberty
Place, 52nd Floor, 1650 Market Street, Philadelphia, Pennsylvania 19103
(Telephone: (215) 988-1329, Telecopy: (215) 972-8372). The Corporate Trust
Office may be changed by notice to the Company from the Trustee.
"Corporation" means a corporation, limited liability company,
association, company, partnership, joint-stock company or business trust.
"Coupon" means any interest Coupon appertaining to a Bearer Security.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or premium, if any, or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"Depository" means, with respect to any Security issuable or issued in
the form of one or more global Securities, the Person designated as Depository
by the Company in or pursuant to this Indenture, which Person must be, for a
Global Security in registered form, a clearing agency registered under the
Exchange Act, and, if so provided with respect to any Security, any successor to
such Person. If at any time there is more than one such Person,"Depository"
shall mean, with respect to any Securities, the qualifying entity which has been
appointed with respect to such Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Community.
"Euroclear" means the operator of the Euroclear System.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
3
<PAGE> 10
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency or currency unit
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 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.
"Global Security" means a Security in the form prescribed in Section
203 evidencing all or part of a series of Securities, issued to the Depository
for such series or its nominee, and registered in the name of such Depository or
nominee.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or premium, if any, or interest on or any Additional Amounts with
respect to such Security shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder," when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in the
Register and in the case of a Bearer Security the bearer thereof and, in the
case of any Coupon, means the bearer thereof.
"Indebtedness," with respect to any Person, means indebtedness for
borrowed money or for the unpaid purchase price of real or personal property
(excluding trade debt payables arising in the ordinary course of business) of,
or guaranteed by, such Person and computed in accordance with GAAP.
"Indenture" means this instrument as it may from time to time be
supplemented or amended from time to time in accordance with the terms hereof,
including the provisions of the Trust Indenture Act that are deemed a part
hereof.
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
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promulgated by the SEC thereunder, who may be the independent public accountants
regularly retained by the Company or who may be other independent public
accountants.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security that
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security that provides for the payment
of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of any installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise, and includes the Redemption Date.
"Office" or "Agency," with respect to any Securities, means an office
or agency of the Company maintained or designated as a Place of Payment for such
Securities pursuant to Section 305 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 305 or, to the
extent designated or required by Section 305 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officer" means, with respect to any corporation, any Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
such corporation.
"Officers' Certificate" means a certificate signed by the either
Co-Chief Executive Officer, the Chief Financial Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, that complies with the requirements of
Sections 102 and 103 and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of the Company, or any other counsel who shall be reasonably acceptable
to the Trustee and provided that the General Counsel and the Assistant General
Counsel of the Company shall be deemed to be reasonably acceptable to the
Trustee, containing the applicable information specified in Sections 102 and
103.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture that provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 502.
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"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Registrar or delivered to the Trustee or the Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant hereto (other
than pursuant to Section 402) with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities and any related Coupons, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance pursuant to the terms hereof, except to the extent provided in
Section 402;
(d) any such Security which has been paid pursuant to Section 309 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, unless there shall have been presented to
the Trustee proof satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation of the Company; and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities, if the terms of such Security
provide for such conversion or exchange pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (i) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Indexed Security that
may be counted in making such determination and that shall be deemed outstanding
for such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided in or pursuant to this
Indenture, (iii) the principal amount of a Security denominated in a Foreign
Currency or currencies shall be the Dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above), of such Security, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, or upon
any such determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any related Coupons or an Affiliate of the
Company or of such other obligor.
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<PAGE> 13
"Paying Agent" means any Person authorized by the Company to pay the
principal of and premium, if any and any interest on or any Additional Amounts
with respect to, any Security or any related Coupon on behalf of the Company.
"Person" means any individual, corporation, joint venture, joint stock
association, trust, unincorporated organization or government or any agency or
political subdivision thereof or any other entity.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
1002, the principal of and premium, if any, and any interest on or any
Additional Amount with respect to the Securities and related Coupons of that
series are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 309 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security and/or related Coupon
shall be deemed to evidence the same Indebtedness as the mutilated, destroyed,
lost or stolen Security and/or related Coupon, as the case may be.
"Principal Property" means any manufacturing plant or other facility
owned by the Company or any Restricted Subsidiary, whether now owned or
hereafter acquired, which is located within the continental United States and,
in the opinion of the Board of Directors or an officer designated by the Board
of Directors, is of material importance to the total business conducted by the
Company and its Restricted Subsidiaries taken as a whole.
"Redemption Date," with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form set forth pursuant
to Section 201 or established pursuant to Section 301 which is registered in the
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date for the Registered Securities of any series means the date specified for
such Registered Securities as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
Senior Vice President, any Vice President, any Assistant Vice President, any
Trust Officer, or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary all the physical property
of which is located within the continental United States, which owns a Principal
Property or in which the Company's
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<PAGE> 14
investment, whether in the form of equity or debt, is in excess of 10% of the
Consolidated Net Tangible Assets of the Company as of the end of the fiscal year
preceding the date of determination; provided, however, that the term
"Restricted Subsidiary" shall not include any Subsidiary which is principally
engaged in financing exports from or operations outside the continental United
States.
"SEC" means the Securities and Exchange Commission.
"Securities" means any securities of any series issued, authenticated
and delivered under this Indenture.
A "series" of Securities means all Securities denoted as part of the
same series authorized by or pursuant to a particular Board Resolution or a
supplemental indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date determined pursuant to Section
307.
"Stated Maturity," when used with respect to any Security or any
installment of principal of or interest on or any Additional Amounts with
respect to such Security, means the date specified in such Security or a Coupon
representing such installment of interest as the fixed date on which the
principal of such Security or such installment of principal or interest is, or
such Additional Amounts are, due and payable.
"Stated Maturity Date," with respect to any Security, means the date
specified for such Security as the fixed date on which the principal of such
Security is due and payable.
"Subsidiary" means any corporation or other business entity of which
more than 50% of the total voting power of shares of capital stock or other
interests (including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers,
trustees or the governing individuals or body thereof is at the time owned or
controlled, directly or indirectly, by (i) the Company, (ii) the Company and one
or more Subsidiaries, or (iii) one or more Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and as in effect on the date of this Indenture; provided, however, that if such
Act is amended after such date, Trust Indenture Act means, to the extent
required by any such amendment, such Act as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor, and if at any time there is more than one such Person, "Trustee" as
used with respect to Securities of any series shall mean the Trustee with
respect to Securities of that series.
"United States" or "U.S." means the United States of America (including
the States and the District of Columbia), its territories and possessions, and
other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income
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tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
(b) Certain other definitions are found in:
Term Defined in Section
"Act"...................................... 104
"Attributable Debt"........................ 1008
"Conversion Agent"......................... 305
"Custodian"................................ 501
"Debt"..................................... 1007
"Default".................................. 501
"Defaulted Interest"....................... 311
"Event of Default"......................... 501
"Legal Holiday"............................ 115
"Notice of Default"........................ 501
"Register"................................. 305
"Registrar"................................ 305
"Successor"................................ 801
(c) Whenever this Indenture refers to a provision of the Trust
Indenture Act, such provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"indenture securities" means the 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 Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by SEC rule have the meanings assigned to them by
such definitions.
(d) Unless the context otherwise requires, the following rules of
construction are used in this Indenture:
(1) each capitalized term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with U.S. GAAP;
(3) "or" is not exclusive;
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(4) "including" means including, without limitation;
(5) words in the singular include the plural, and words in the
plural include the singular; and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
SECTION 102. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (complying with Section 103) stating that,
in the opinion of such Officer, all conditions precedent to the taking of such
action have been complied with; and
(b) if applicable, an Opinion of Counsel (complying with Section 103)
stating that, in the opinion of such counsel all such conditions precedent to
the taking of such action have been complied with.
SECTION 103. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(a) a statement that each Person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such Officers'
Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
matters of fact not involving any legal conclusion, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders, in person or by an agent
duly appointed in writing and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein
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<PAGE> 17
and evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository that
is a Holder of a Global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders, and a Depository that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interests in any such Global Security through such Depository's
standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as Depository, by any trust
company, bank, banker or other Depository reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such Depository, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(i) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (ii) such Bearer Security is produced
to the Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer Security
is no longer Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities held by the Person so executing such instrument or writing and
the date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
(e) If the Company solicits from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by or pursuant to a resolution of its Board of Directors,
fix in advance a Record Date for the determination of Holders entitled to give
such Act, but the Company shall have no obligation to do so. If such a Record
Date is fixed, such Act may be given before or after such Record Date, but only
Holders of record at the close of business on such Record Date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such Act, and for that purpose the Outstanding Securities shall be computed as
of such Record Date.
(f) Any Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
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SECTION 105. NOTICES TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument, to the attention of its Secretary, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(a) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each Holder
of a Registered Security affected by such event, at the address of such Holder
as it appears in the Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice; and
(b) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in the City of New York and,
if such Securities are then listed on any stock exchange outside the United
States, in an Authorized Newspaper in such city as the Company shall advise the
Trustee that such stock exchange so requires, on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and the
second such publication not later than the latest date, prescribed for the
giving of such notice. In case of the suspension of publication of any
Authorized Newspaper or for any other cause it shall be impracticable to publish
any notice to Holders of Bearer Securities as provided above, then notification
to Holders of Bearer Securities shall be given in any other manner approved by
the Trustee, and shall constitute sufficient notice to such Holders for every
purpose hereunder. Neither the failure to give notice by publication to Holders
of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Failure to give a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is given in the manner provided above, it is duly given,
whether or not received by the addressee.
If the Company gives a notice or communication to the Holders, it shall
deliver a copy to the Trustee and each Registrar and Paying Agent.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but
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such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. COMMUNICATION BY HOLDERS WITH OTHER 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 Securities. The Company, the Trustee, the Registrar, the Paying
Agent and anyone else shall have the protection provided by Section 312(c) of
the Trust Indenture Act.
SECTION 108. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 109. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of Section 318(c) of the Trust Indenture Act,
the imposed duties shall control. The provisions of Sections 310 to 317,
inclusive, of the Trust Indenture Act that impose duties on any Person
(including provisions automatically deemed included in an indenture unless the
indenture provides that such provisions are excluded) are a part of and govern
this Indenture, except as, and to the extent, they are expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
SECTION 110. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof, and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 111. SUCCESSORS AND ASSIGNS.
All agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successors and assigns.
SECTION 112. SEVERABILITY CLAUSE.
In case any provision in this Indenture or the Securities or Coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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SECTION 113. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or Coupons, express or
implied, shall give to any Person, other than the parties hereto, any Registrar,
any Paying Agent and their successors hereunder and the Holders of Securities
and Coupons, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 114. GOVERNING LAW.
This Indenture and the Securities and Coupons shall be governed by and
construed in accordance with the laws of the State of Delaware as applied to
contracts made and performed within the State of Delaware, without regard to its
principles of conflicts of laws, except that the rights, limitations of rights,
obligations, duties and immunities of the Trustee shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 115. LEGAL HOLIDAYS.
A "Legal Holiday" is any day other than a Business Day. If any
specified date (including a date for giving notice) is a Legal Holiday, the
action to be taken on such date shall be taken on the next succeeding day that
is not a Legal Holiday, and if such action is a payment in respect of the
Securities, unless otherwise specified pursuant to Section 301 no principal,
premium, if any, or interest installment shall accrue in respect of such payment
for the intervening period.
SECTION 116. COUNTERPARTS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. Any signed copy shall be sufficient proof of this Indenture.
SECTION 117. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such
obligations. By accepting a Security, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for
the issuance and sale of the Securities.
SECTION 118. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related Coupons shall be in substantially
the forms (including permanent global form) as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or Coupons, as evidenced by their execution of the Securities or Coupons.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest Coupons attached.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
Coupons, as evidenced by their execution of such Securities or Coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 609, the Trustee's certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The Chase Manhattan Bank
As Trustee
By
-------------------------
Authorized Officer
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 301, then any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities represented thereby may from time to time be reduced
to reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the
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applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Sections 311, unless otherwise
specified as contemplated by Section 301, payment of principal of and premium,
if any, and interest on and any Additional Amounts with respect to, any Security
in temporary or permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 312 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent Global Security as shall be
specified in a written statement of the Holder of such permanent Global Security
or, in the case of a permanent Global Security in bearer form, of Euroclear or
Cedel Bank, S.A., which is produced to the Trustee by such Person.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be authenticated
and delivered and outstanding under this Indenture is unlimited.
The Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
in an Officers' Certificate, or established in one or more indentures
supplemental hereto:
(a) the title of such Securities and the series in which such
Securities shall be included;
(b) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to Section 304, 308, 309, 905 or 1106,
upon surrender in part of any Registered Security for conversion or exchange
into Common Stock or other securities pursuant to its terms, or pursuant to the
terms of such Securities);
(c) if such Securities are to be issuable as Registered Securities, as
Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the Bearer Securities are to be issuable with Coupons,
without Coupons or both, and any restrictions applicable to the offer, sale or
delivery of the Bearer Securities and the terms, if any, upon which Bearer
Securities may be exchanged for Registered Securities and vice versa;
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(d) if any of such Securities are to be issuable in global form, when
any of such Securities are to be issuable in global form and (i) whether such
Securities are to be issued in temporary or permanent global form or both, (ii)
whether beneficial owners of interests in any such Global Security may exchange
such interests for Securities of the same series and of like tenor and of any
authorized form and denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in Section 308, and
(iii) the name of the Depository with respect to any Global Security;
(e) if any of such Securities are to be issuable as Bearer Securities
or in global form, the date as of which any such Bearer Security or Global
Security shall be dated (if other than the date of original issuance of the
first of such Securities to be issued);
(f) if any of such Securities are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer Security in
global form payable in respect of an Interest Payment Date therefor prior to the
exchange, if any, of such temporary Bearer Security for definitive Securities
shall be paid to any clearing organization with respect to the portion of such
temporary Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date;
(g) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the principal of such Securities is
payable;
(h) the rate or rates (which may be fixed or variable) at which such
Securities shall bear interest, if any, or the method or methods, if any, by
which such rate or rates are to be determined, the date or dates, if any, from
which such interest shall accrue or the method or methods, if any, by which such
date or dates are to be determined, the Interest Payment Dates, if any, on which
such interest shall be payable and the Regular Record Date, if any, for the
interest payable on Registered Securities on any Interest Payment Date, whether
and under what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of giving
such notice, and the basis upon which interest shall be calculated if other than
that of a 360-day year composed of twelve 30-day months;
(i) if in addition to or other than the Borough of Manhattan, the City
of New York, the place or places where the principal of, premium, if any, and
interest on or any Additional Amounts with respect to such Securities shall be
payable, any of such Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, any of such Securities may
be surrendered for conversion or exchange and notices or demands to or upon the
Company in respect of such Securities and this Indenture may be served, the
extent to which, or the manner in which, any interest payment on or Additional
Amounts with respect to a Global Security on an Interest Payment Date will be
paid and the manner in which any principal of or premium, if any, on any Global
Security will be paid;
(j) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the date or dates on which, the period or periods
within which, the price or prices at which and the other terms and conditions
upon which such Securities may be redeemed, in whole or in part, at the option
of the Company;
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(k) if the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the option
of any Holder thereof and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities shall be redeemed or purchased, in whole
or in part, pursuant to such obligation, and any provisions for the remarketing
of such Securities so redeemed or purchased;
(l) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of $1,000
and any integral multiple thereof, and the denominations in which any of such
Securities that are Bearer Securities shall be issuable if other than the
denomination of $5,000;
(m) whether the Securities of the series will be convertible into
shares of Common Stock and/or exchangeable for other securities, and if so, the
terms and conditions upon which such Securities will be so convertible or
exchangeable, including the conversion or exchange price, the conversion or
exchange date(s) or period(s), provisions as to whether conversion or exchange
will be at the option of the Holder or the Company, the events requiring
adjustment of the conversion or exchange price and provisions affecting
conversion or exchange in the event of redemption of the Securities of any
series and any deletions from or modifications or additions to this Indenture to
permit or to facilitate the issuance of such convertible or exchangeable
Securities or the administration thereof;
(n) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion is to be determined;
(o) if other than Dollars, the Foreign Currency in which payment of the
principal of, premium, if any, and interest on or any Additional Amounts with
respect to any of such Securities and related Coupons shall be payable;
(p) if the principal of, premium, if any, or interest on or any
Additional Amounts with respect to any of such Securities are to be payable, at
the election of the Company or a Holder thereof or otherwise, in Dollars or in a
Foreign Currency other than that in which such Securities are stated to be
payable, the date or dates on which, the period or periods within which, and the
other terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such Securities or
any of them are to be paid pursuant to such election, and any deletions from or
modifications of or additions to the terms of this Indenture to provide for or
to facilitate the issuance of Securities denominated or payable, at the election
of the Company or a Holder thereof or otherwise, in a Foreign Currency;
(q) whether the amount of payments of principal of, premium, if any, or
interest on or any Additional Amounts with respect to such Securities may be
determined with reference to an index, formula or other method or methods (which
index, formula or method or methods may be based, without limitation, on one or
more Currencies, commodities, equity indices or other indices), and, if so, the
terms and conditions upon which and the manner in which such amounts shall be
determined and paid or payable;
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(r) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to any of such Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(s) if either or both of Section 402(b) relating to defeasance or
Section 402(c) relating to covenant defeasance shall not be applicable to the
Securities of such series, or any covenants in addition to those specified in
Section 402(c) relating to the Securities of such series which shall be subject
to covenant defeasance, and any deletions from, or modifications or additions
to, the provisions of Article Four in respect of the Securities of such series;
(t) if any of such Securities are to be issuable upon the exercise of
warrants, and the time, manner and place for such Securities to be authenticated
and delivered;
(u) if any of such Securities are to be issuable in global form and are
to be issuable in definitive form (whether upon original issue or upon exchange
of a temporary Security) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and terms of such
certificates, documents or conditions;
(v) if the Securities are Original Issue Discount Securities, the dates
within 15 days of which lists of Holders of Securities are to be furnished to
the Trustee pursuant to Trust Indenture Act Section 312(a);
(w) if there is more than one Trustee, the identity of the Trustee and,
if not the Trustee, the identity of each Registrar, Paying Agent or
Authenticating Agent with respect to such Securities; and
(x) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
may otherwise be provided by the Company in or pursuant to the Board Resolution
and set forth in the Officers' Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. The terms of the
Securities of any series may provide, without limitation, that the Securities
shall be authenticated and delivered by the Trustee on original issue from time
to time upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental indenture.
All Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
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SECTION 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, premium, if any, and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
SECTION 303. EXECUTION, AUTHENTICATION AND DELIVERY.
(a) The Securities and the related Coupons, if any, shall be executed
in the name and on behalf of the Company by its Chief Executive Officer, its
Chief Financial Officer, its President or one of its Vice President, its
Treasurer or one of its Assistant Treasurers, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and the
related Coupons, if any, may be manual or facsimile.
(b) Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
(c) No Security or any related Coupon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a Certificate of Authentication duly executed by the
Trustee by manual signature of a Responsible Officer, and such Certificate of
Authentication upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and made available for
delivery hereunder. Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
(d) The Trustee shall authenticate and deliver Securities of a series,
and any related Coupon, for original issue, at one time or from time to time in
accordance with the Company Order referred to below, upon receipt by the Trustee
of:
(i) a Board Resolution as required by Section 301;
(ii) a Company Order requesting the authentication and
delivery of such Securities;
(iii) an Officers' Certificate or a supplemental indenture
setting forth the form of such Securities and, except as set forth in a
Board Resolution, establishing the terms thereof;
(iv) such Securities, executed on behalf of the Company in
accordance with clause (a) of this Section;
(v) an Opinion of Counsel to the effect that:
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(1) the form or forms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(2) such Securities, when authenticated and delivered
by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will have been duly issued under this Indenture
and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their terms,
subject, as to enforcement to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(3) that any supplemental indenture referred to in
clause (iii) above has been duly authorized, executed and
delivered by the Company and is a valid instrument legally
binding upon the Company, enforceable in accordance with its
terms, subject as to enforcement to laws relating to or
affecting creditors' rights, including without limitation,
bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(4) that all consents, approvals and orders of any
commission, governmental authority or agency required in
connection with the issuance and delivery of such Securities
have been obtained; and
(vi) an Officers' Certificate certifying that no Default or
Event of Default has occurred and is continuing.
(e) The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent. Each Authenticating
Agent shall be acceptable to the Company and, except as provided in or pursuant
to this Indenture, shall at all times be a corporation that would be permitted
by the Trust Indenture Act to act as trustee under an indenture qualified under
the Trust Indenture Act, is authorized under applicable law and by its charter
to act as an Authenticating Agent and has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at
least $50,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section. An
Authenticating Agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent. The Trustee shall pay any
Authenticating Agent appointed by the Trustee reasonable compensation for its
services and the Trustee shall be reimbursed for such payment by the Company
pursuant to Section 607. The provisions set forth in Sections 602, 603 and 607
shall be applicable to any Authenticating Agent.
(f) If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such opinion
and certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
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certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
(g) Except as permitted by Section 309 or 310, the Trustee shall not
authenticate and deliver any Bearer Security unless all related Coupons then
matured have been detached and cancelled.
SECTION 304. TEMPORARY SECURITIES.
The Company may execute temporary Securities, and upon the Company's
Order, the Trustee shall authenticate and make such temporary Securities
available for delivery. Temporary Securities shall be printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
in the same series and principal amount and of like tenor as the definitive
Securities in lieu of which they are issued, in bearer form with one or more
Coupons or without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the Officers of the Company executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, after the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities of the same series upon surrender of the temporary
Securities at the Office or Agency of the Company designated for such purpose
pursuant to Section 305, without charge to the Holders thereof. Upon surrender
for cancellation of any one or more temporary Securities (accompanied by any
unmatured Coupons), the Company shall execute a like principal amount of
definitive Securities of the same series of authorized denominations, and the
Trustee, upon receipt of a Company Order, shall authenticate and make such
Securities available for delivery in exchange therefor; provided, however, that
no definitive Bearer Security, except as provided in or pursuant to this
Indenture, shall be delivered in exchange for a temporary Registered Security;
and provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 305. REGISTRAR AND PAYING AND CONVERSION AGENTS.
The Company shall maintain or cause to be maintained, in the City of
New York, an Office or Agency where the Securities may be presented for
registration of transfer or for exchange ("Registrar"), a Paying Agent at whose
office the Securities may be presented or surrendered for payment, a Conversion
Agent at whose Office the Securities may be presented and surrendered in the
event of a conversion or exchange ("Conversion Agent"), and an Office or Agency
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Registrar shall keep a register (the
"Register") of the Securities and of their transfer and exchange. The Company
may have one or more co-Registrars, one or more additional Paying Agents and one
or more Conversion Agents, and may rescind the designation of any Paying Agent
or Conversion Agent, provided, however, that the Company shall at all times
maintain a Paying Agent in each Place of Payment. The term Registrar includes
any additional registrar, the term Paying Agent includes any additional paying
agent and the term Conversion Agent includes any additional conversion agent.
Unless otherwise specified in or pursuant to this Indenture or the
Securities, the Trustee shall be the initial Registrar, Paying Agent and
Conversion Agent for each series of Securities. The Company
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shall have the right to remove and replace from time to time the Registrar for
any series of Securities; provided that no such removal or replacement shall be
effective until a successor Registrar with respect to such series of Securities
shall have been appointed by the Company and shall have accepted such
appointment by the Company. In the event that the Trustee shall not be or shall
cease to be Registrar with respect to a series of Securities, it shall have the
right to examine the Register for such series at all reasonable times. There
shall be only one Register for each series of Securities.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-Registrar (if not the Company or
the Trustee or an Affiliate of the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall give
prompt written notice to the Trustee and to the Holders of any change of
location of such Office or Agency. If at any time the Company shall fail to
maintain or cause to be maintained 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 address of the
Trustee set forth Section 101. The Company shall notify the Trustee of the name
and address of any such agent. If the Company fails to maintain a Registrar,
Paying Agent , Conversion Agent or agent for service of notices or demands, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 607. The Company or any Affiliate of the Company
may act as Paying Agent, Conversion Agent, Registrar or co-Registrar or agent
for service of notices and demands.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee and to the Holders of any
such designation or rescission and of any change in location of any such other
Office or Agency.
SECTION 306. PAYING AGENT TO HOLD MONEY IN TRUST.
Except as otherwise provided herein, prior to or on each due date of
the principal of and premium, if any, and interest on or Additional Amounts with
respect to, any Security, the Company shall deposit with the Paying Agent a sum
of money sufficient to pay such principal, premium, if any, and interest on or
Additional Amounts so becoming due. The Company shall require each Paying Agent
(other than the Trustee or the Company) to agree in writing that such Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal of and premium, if any and
interest on or Additional Amounts with respect to the Securities and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying Agent shall,
upon the request of the Trustee, pay to the Trustee all money so held in trust
and account for any money disbursed by it. The Company at any time may require
the Paying Agent to pay all money held by it to the Trustee and to account for
any money disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If the Company, a
Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund.
SECTION 307. LIST OF HOLDERS.
The Trustee shall preserve in as current a form as is reasonably
practicable, the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall cause to be
furnished to the Trustee on or before the Record Date for each Interest Payment
Date
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and at such other times as the Trustee may request in writing, within five
Business Days of such request, a list, in such form as the Trustee may
reasonably require of the names and addresses of Holders.
SECTION 308. TRANSFER AND EXCHANGE.
With respect to Registered Securities of each series, when Securities
are presented to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Securities of the
same series of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if its reasonable requirements for
such transactions are met. To permit registrations of transfer and exchanges,
the Company shall execute and the Trustee shall authenticate Securities, all at
the Registrar's request.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder or his attorney duly
authorized in writing.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (a) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (b)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such Coupon
is so surrendered with such Bearer Security, such Coupon shall be returned to
the Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
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Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
The Company shall not require payment of a service charge for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of the transfer
or exchange of Securities from the Holder requesting such transfer or exchange
(other than any exchange of a temporary Security for a definitive Security not
involving any change in ownership).
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) any Security for a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such mailing, (b)
any Security selected, called or being called for redemption, except, in the
case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (c) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture.
SECTION 309. REPLACEMENT SECURITIES.
If (a) any mutilated Security or a Security with a mutilated Coupon is
surrendered to the Company or the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such Security
and/or Coupon or indemnity as may reasonably be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute in exchange for any such mutilated Security and/or Coupon, or in lieu of
any such destroyed, lost or stolen Security, a new Security with any related
Coupon of the same series and of like tenor and principal amount bearing a
number not contemporaneously outstanding and the Trustee shall authenticate and
make such new Security available for delivery.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be redeemed by the
Company pursuant to Article Eleven, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, and any related
Coupon, as the case may be; provided, however, that payment of principal of,
premium, if any, or interest on or any Additional Amounts with respect to any
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
related Coupons.
Upon the issuance of any new Securities, with its Coupons, if any,
under this Section, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the reasonable fees and expenses of
the Trustee) in connection therewith.
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Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company (whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable) and shall
be entitled to all benefits of this Indenture equally and ratably with any and
all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 310. BOOK-ENTRY SYSTEM.
In order to utilize a book-entry-only system for all or any portion of
the Securities of any series, all or a portion of the Securities of any series
may be issued in the form of one or more fully registered Securities of the same
series as a Global Security, which Global Security shall be registered in the
name of the Depository selected by the Company or in the name of such
Depository's nominee. Each Global Security shall be delivered by the Trustee to
the Depository or pursuant to the Depository's instruction and shall bear a
legend substantially to the following effect: "This Security may be transferred,
in whole but not in part, only to another nominee of the Depository or to a
successor Depository or to a nominee of such successor Depository."
Notwithstanding any other provision of this Section or of Section 308,
a Global Security may be transferred in whole but not in part and in the manner
provided in Section 308, only by a nominee of the Depository for such series, or
by the Depository or any such nominee of a successor Depository for such series
selected or approved by the Company or to a nominee of such successor
Depository.
If (a) at any time the Depository for Global Securities of any series
of Securities notifies the Company that it is unwilling or unable to continue as
Depository for such Global Securities or if at any time the Depository for such
Global Securities shall no longer be a clearing agency registered or in good
standing under the Exchange Act or other applicable statute or regulation, and a
successor Depository for such Global Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, (b) the Company determines in its sole
discretion, that the Securities of any series shall no longer be represented by
one or more Global Securities and delivers to the Trustee an Officers'
Certificate evidencing such determination or (c) a Default or an Event of
Default occurs and is continuing, then the provisions of this Section shall no
longer apply to the Securities of such series. In such event, the Company will
execute and the Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and deliver Securities of
such series and of like tenor in definitive registered form, in authorized
denominations, and in aggregate principal amount equal to the principal amount
of the Global Securities of such series in exchange for such Global Securities.
Upon the exchange of Global Securities for such Securities in definitive
registered form without Coupons, in authorized denominations, the Global
Securities shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for Global Securities pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
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Except as provided above or as provided in any supplemental indenture,
owners of beneficial interests in a Global Security shall not be entitled to
receive physical delivery of Securities in definitive form and will not be
considered the Holders thereof for any purpose under this Indenture.
Members of or participants in the Depository shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the
Depository, and such Depository or its nominee, as the case may be, may be
treated by the Company, the Trustee, and any agent of the Company or the Trustee
as the Holder of such Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its members or participants, the
operation of customary practices governing exercise of the rights of a Holder of
any Security, including without limitation the granting of proxies or other
authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under this Indenture.
SECTION 311. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS;
RIGHTS TO INTEREST AND CERTAIN ADDITIONAL AMOUNTS PRESERVED.
Unless otherwise specified pursuant to Section 301(h), interest on the
Securities shall be computed on the basis of a 360-day year composed of twelve
30-day months, and for any period shorter than 30 days, interest will be
computed on the basis of the actual number of days elapsed in such period.
Unless otherwise provided with respect to a series of Securities,
(a) the principal and Redemption Price of and interest on each Security
shall be payable in such Currency established for such Security;
(b) the principal and Redemption Price of any Security and interest
payable on the Stated Maturity Date (if other than an Interest Payment Date) or
Redemption Date shall be payable upon surrender of such Security at the Office
or Agency of any Paying Agent therefor; and
(c) interest on any Security shall be paid on each Interest Payment
Date therefor to the Holder thereof at the close of business on the Record Date
therefor, such interest to be payable by check mailed to the address of the
Person entitled thereto as such address appears on the Register; provided
however, that (i) at the written request of any Holder of at least $10,000,000
aggregate principal amount of Securities received by the Registrar not later
than the Regular Record Date for such Interest Payment Date, interest accrued on
such Securities will be payable by wire transfer within the continental United
States in immediately available funds to the bank account number of such Holder
specified in such request and entered on the Register by the Registrar and (ii)
payments made in respect of Global Securities shall be made in immediately
available funds to the Depositary.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or (ii) below:
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(i) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security shall be
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 Registered
Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such
money when so deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon, the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of a Registered Security at his address as it
appears in the Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the
expense of the Company cause a similar notice to be published at least
once in an Authorized Newspaper of general circulation in the Borough
of Manhattan, the City of New York, but such publication shall not be a
condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such
Registered Security shall be registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (ii). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered
Security after the close of business at such Office or Agency on any
Special Record Date and before the opening of business at such Office
or Agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Defaulted Interest and Defaulted Interest shall not be
payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee and the Paying Agent of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by
the Paying Agent.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Register or by transfer to
an account maintained by the payee with a bank located in the United States.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
If any convertible Registered Security of any series is converted after
any Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Registered Security with respect to which the Stated
Maturity is prior to such Interest Payment Date), interest that is due on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Registered Security is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Registered Security that is converted, interest
shall not be payable if the Regular Record Date is after the date of conversion
of such Registered Security.
SECTION 312. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Register as the owner of such Registered Security for the purpose of receiving
payment of principal of, premium, if any, and (subject to Sections 308 and 311)
interest on and any Additional Amounts with respect to such Registered Security
and for all other purposes whatsoever, whether or not any payment with respect
to such Registered Security shall be overdue, and neither the Company, nor the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Company, nor the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such Global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. 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 of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 313. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in
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any manner whatsoever, and all Securities so delivered shall be cancelled
promptly by the Trustee. The Company may not reissue or issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be destroyed by the
Trustee, and the Trustee shall deliver a certificate of destruction to the
Company.
SECTION 314. COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS.
If any Bearer Securities are to be issued in any series of Securities,
the Company will use reasonable efforts to provide for arrangements and
procedures designed pursuant to then applicable laws and regulations, if any, to
ensure that such Bearer Securities are sold or resold, exchanged, transferred
and paid only in compliance with such laws and regulations and without adverse
consequences to the Company, the Holders and the Trustee.
SECTION 315. RETURN OF MONEYS HELD BY THE TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS.
Any moneys deposited with or paid to the Trustee or any Paying Agent
for the payment of the principal of and premium, if any, or interest on or
Additional Amounts with respect to the Securities, and any related Coupons, of
any series and not applied but remaining unclaimed for two years after the date
when such principal, premium, if any, interest or Additional Amount shall have
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be repaid to the
Company by the Trustee or such Paying Agent, and the Holders of such Securities
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect as a general unsecured
creditor, and all liability of the Trustee or any Paying Agent with respect to
such moneys shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
each Place of Payment for such series or to be mailed to Holders of Registered
Securities of such series, or both, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing nor shall it be later than two years
after such principal and premium, if any, or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such money then
remaining will be repaid to the Company.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities and
any related Coupons as specified in such Company Order, and the Trustee, on
receipt of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(a) either
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(i) all Securities of such series, and all related
Coupons, if any, theretofore authenticated and delivered
(other than (1) Coupons relating to Bearer Securities of such
series surrendered in exchange for Registered Securities of
such series and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 308,
(2) Securities and Coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 309, (3) Coupons relating to Securities
of such series called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1104, and (4) Securities and Coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 315) have been
delivered to the Trustee for cancellation; or
(ii) all Securities of such series and, in the case
of (1) or (2) below, any related Coupons thereto, not
theretofore delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Stated Maturity within one year, or
(3) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose, money in Currency in which
such Securities are payable in an amount sufficient to pay and
discharge the entire indebtedness on such Securities and any
related Coupons not theretofore delivered to the Trustee for
cancellation, including the principal of, premium, if any, and
interest on, and any Additional Amounts with respect to such
Securities and any related Coupons, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Maturity or Redemption Date thereof, as the
case may be; and
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any related Coupons.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture, with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 607 and, if money shall have been deposited with the
Trustee pursuant to clause (a)(ii) of this Section, the following obligations of
the Company and the Trustee with respect to the Securities of such series, shall
survive: (i) the rights of registration of transfer and exchange of Securities
of such series, (ii) the replacement of apparently
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mutilated, defaced, destroyed, lost or stolen Securities of such series, (iii)
the rights of the Holders of the Securities, and any related Coupons, of such
series to receive payments of the principal of and premium, if any, interest on
or any Additional Amounts with respect to the Securities of such series, (iv)
the rights of the Holders of the Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them, (v) the obligation of the Company to maintain an Office or
Agency for payments on and registration of transfer of the Securities of such
series, (vi) the rights, obligations and immunities of the Trustee hereunder,
and (vii) any rights to convert or exchange the Securities of such series into
Common Stock or other securities or rights in accordance with their terms.
SECTION 402. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY
SERIES.
(a) Unless, pursuant to Section 301, either or both of (i) defeasance
of the Securities of or within a series under clause (b) of this Section shall
not be applicable with respect to the Securities of such series or (ii) covenant
defeasance of the Securities of or within a series under clause (c) of this
Section shall not be applicable with respect to the Securities of such series,
then such provisions, together with the other provisions of this Section (with
such modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities and any
related Coupons, and the Company may at its option by Board Resolution, at any
time, with respect to such Securities and any related Coupons, elect to have
clause (b) or clause (c) be applied to such Outstanding Securities and any
related Coupons upon compliance with the conditions set forth below in this
Section.
(b) Upon the Company's exercise of the above option applicable to this
clause (b) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any related Coupons on the date the conditions
set forth in clause (d) of this Section are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by such
Outstanding Securities and any related Coupons, which shall thereafter be deemed
to be "Outstanding" only for the purposes of clause (e) of this Section and the
other Sections of this Indenture referred to in clauses (i) and (ii) below, and
to have satisfied all of its other obligations under such Securities and any
related Coupons and this Indenture insofar as such Securities and any related
Coupons are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Outstanding Securities and any related Coupons to
receive, solely from the trust fund described in clause (d) of this Section and
as more fully set forth in such clause, payments in respect of the principal of,
premium, if any, and interest on, and Additional Amounts with respect to, such
Securities and any related Coupons when such payments are due, and any rights of
such Holder to convert or exchange such Securities into Common Stock or other
securities, (ii) the obligations of the Company and the Trustee with respect to
such Securities under Sections 308, 309, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1004 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to clause (d)(i) below), and with respect to any
rights to convert or exchange such Securities into Common Stock or other
securities, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Section. The Company may exercise its option
under this clause (b) notwithstanding the prior exercise of its option under
clause (c) of this Section with respect to such Securities and any related
Coupons.
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(c) Upon the Company's exercise of the above option applicable to this
clause (c) with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 1007 and 1008, and, to the
extent specified pursuant to Section 301, under any covenants described in a
supplemental indenture pursuant to Section 901(b) applicable to such series of
such Securities with respect to such Outstanding Securities and any related
Coupons on and after the date the conditions set forth in clause (d) of this
Section are satisfied (hereinafter, "covenant defeasance"), and such Securities
and any related Coupons shall thereafter be deemed to be not "Outstanding" for
the purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with any such covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any related Coupons, the Company may omit to comply
with, and shall have no liability in respect of, any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under clause (d) or (h) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and related
Coupons shall be unaffected thereby.
(d) The following shall be the conditions to application of clause (b)
or (c) of this Section to any Outstanding Securities of or within a series and
any related Coupons:
(i) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Section applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
such Securities and any related Coupons, (1) an amount in Dollars or in
such Foreign Currency in which such Securities and any related Coupons
are then specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and related Coupons
(determined on the basis of the Currency in which such Securities and
related Coupons are then specified as payable at Stated Maturity) which
through the scheduled payment of principal of and interest on in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of, and premium, if any and
interest on such Securities and any related Coupons, money in an
amount, or (3) a combination thereof, in any case, in an amount,
sufficient, without consideration of any reinvestment of such principal
and interest, in the opinion of a nationally recognized firm of
Independent Public Accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (y) the principal of, and premium, if any, and interest on
such Outstanding Securities and any related Coupons on the Stated
Maturity of such principal or installment of principal or interest and
(z) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any related Coupons on
the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any related
Coupons.
(ii) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
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(iii) No Default or Event of Default with respect to such
Securities and any related Coupons shall have occurred and be
continuing on the date of such deposit and, with respect to defeasance
only, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(iv) In the case of an election under clause (b) of this
Section, the Company shall have delivered to the Trustee a reasoned
Opinion of Counsel stating that (1) the Company has received from the
Internal Revenue Service a letter ruling, or there has been published
by the Internal Revenue Service a Revenue Ruling, or (2) since the date
of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any related Coupons 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 and at the same times as would have been
the case if such defeasance had not occurred.
(v) In the case of an election under clause (c) of this
Section, the Company shall have delivered to the Trustee a reasoned
Opinion of Counsel to the effect that the Holders of such Outstanding
Securities and any related Coupons 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.
(vi) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance under
clause (b) or (c) of this Section (as the case may be) have been
complied with.
(vii) Notwithstanding any other provisions of this Section
(d), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 301.
(e) Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in clause (d)(i) has been made, (i)
the Holder of a Security in respect of which such deposit was made is entitled
to, and does, elect pursuant to Section 301 or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
clause (d)(i) has been made in respect of such Security, or (ii) a Conversion
Event occurs in respect of the Foreign Currency in which the deposit pursuant to
clause (d)(i) has been made, the Indebtedness represented by such Security and
any related Coupons shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of and premium, if any, and
interest on, and Additional Amounts with respect to, such Security as the same
becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the Currency in which such Security
becomes payable as a result of such election or Conversion Event based on (x) in
the case of payments made pursuant to clause (i) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each
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payment date, or (y) with respect to a Conversion Event, the applicable market
exchange rate for such Foreign Currency in effect (as nearly as feasible) at the
time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any related
Coupons.
Anything in this Section to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Order any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (d) of this Section which, in the opinion of a
nationally recognized firm of Independent Public Accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section.
SECTION 403. APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 315, all money and Government
Obligations deposited with the Trustee pursuant to Section 401 or 402 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, any related Coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal of, and premium, if any, and interest on and any Additional
Amounts for whose payment such money has or Government Obligations have been
deposited with or received by the Trustee; but such money and Government
Obligations need not be segregated from other funds except to the extent
required by law.
ARTICLE FIVE
DEFAULTS AND REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(a) default in the payment of any interest on or any Additional Amounts
payable with respect to any Security of such series when such interest becomes
or such Additional Amounts become due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or
premium, if any, on any Security of such series when it becomes due, whether at
Maturity, upon any redemption, by declaration of acceleration of Maturity or
otherwise; or
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(c) default in the deposit of any sinking fund payment when and as due
by the terms of a Security of such series; or
(d) default in the performance or breach, of any covenant or agreement
of the Company in this Indenture or the Securities (other than a covenant or
agreement a default in the performance or the breach of which is elsewhere in
this Section specifically dealt with or which has been expressly included in
this Indenture solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(e) a court of competent jurisdiction enters:
(i) a decree or order for relief in respect of the Company in
an involuntary proceeding under any applicable Bankruptcy Law and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(ii) a decree or order adjudging the Company to be insolvent,
or approving a petition seeking reorganization, arrangement, adjustment
or composition of the Company and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a Custodian
of the Company or of any substantial part of the property of the
Company, or ordering the winding up or liquidation of the affairs of
the Company; or
(f) the Company pursuant to or within the meaning of any Bankruptcy
Law: (i) commences a voluntary case or proceeding; (ii) consents to the entry of
an order for relief against it in an involuntary case or proceeding; (iii) files
a petition or answer or consent seeking reorganization or relief or consents to
such filing or to the appointment of or taking possession by a Custodian of it
or for all or substantially all of its property, and such Custodian is not
discharged within 60 days; (iv) makes a general assignment for the benefit of
its creditors; or (v) admits in writing its inability to pay its debts generally
as they become due; or
(g) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
For the purpose of this Indenture, the term "Default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
SECTION 502. ACCELERATION.
If any Event of Default with respect to the Securities of any series
other than an Event of Default under clause (e) or (f) of Section 501 occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Securities of that series then outstanding may declare the
principal
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amount of, and any accrued interest on, (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof), and any
accrued interest on, all the Securities of that series due and payable
immediately. If an Event of Default specified in clause (e) or (f) of Section
501 occurs, the principal of, and any accrued interest on, all Securities shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders.
The foregoing paragraph, however, is subject to the condition that if,
at any time after the principal of the Securities of that series shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Securities of that series and
the principal of and premium, if any, on and any Additional Amounts with respect
to all Securities of that series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon overdue
installments of interest and Additional Amounts, at the rate accruing on the
Securities of that series to the date of such payment or deposit) and the amount
payable to the Trustee under Section 607, and any and all Defaults under the
Indenture, other than the nonpayment of principal of and interest on Securities
of that series which shall not have become due by their terms, shall have been
remedied or waived as provided in Section 504, then and in every such case, the
Holders of at least a majority in aggregate principal amount of the Securities
of that series then outstanding, by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences with
respect to that series of Securities; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon.
SECTION 503. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may, in
its own name or as trustee of an express trust, institute, pursue and prosecute
any proceeding, including without limitation, any action at law or suit in
equity or other judicial or administrative proceeding to collect the payment of
principal of or premium, if any, or interest on or Additional Amounts with
respect to the Securities of the series that is in default, to enforce the
performance of any provision of the Securities of that series or this Indenture
or to obtain any other available remedy.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of the Securities in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair such right or remedy or
constitute a waiver of, or acquiescence in, such Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 504. WAIVER OF PAST DEFAULTS.
If a Default or Event of Default with respect to a series of Securities
has occurred and is continuing, the Holders of at least a majority in aggregate
principal amount of the Securities of that series at the time Outstanding, by
notice to the Trustee and the Company, may waive an existing Default or Event of
Default and its consequences except a Default or Event of Default in the payment
of the principal of or premium, if any, or interest on or Additional Amounts
with respect to any Security of that series (unless such Event of Default has
been cured and a sum sufficient to pay all matured installments
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of interest (and premium, if any) and principal due otherwise than by
acceleration has been deposited with the Trustee) or a default in respect of a
covenant or provision which under this Indenture cannot be modified or amended
without the consent of the holder of each Outstanding Security of that series.
When a Default or Event of Default is waived, it is deemed cured and shall cease
to exist, but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any consequent right.
SECTION 505. CONTROL BY HOLDERS.
The Holders of at least a majority in aggregate principal amount of the
Securities of a series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or of exercising any trust
or power conferred on the Trustee, in respect of such series of Securities.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Holders or may involve the Trustee in
personal liability. The Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, including withholding
notice to the Holders of the Securities of continuing default (except in the
payment of the principal of (other than any mandatory sinking fund payment) or
premium, if any, or interest on or Additional Amounts with respect to any
Securities) if the Trustee considers it in the interest of the Holders of the
Securities to do so.
SECTION 506. LIMITATION ON SUITS.
Except as provided in Section 511, no Holder of Securities of any
series or any related Coupons may pursue any remedy with respect to this
Indenture or the Securities unless:
(a) the Holders of Securities of such series give to the Trustee
written notice stating that an Event of Default with respect to the
corresponding Securities of such series has occurred and is continuing;
(b) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series make a written request to the Trustee to
pursue a remedy;
(c) the Holders of Securities of such series provide to the Trustee
reasonable security and indemnity against any loss, liability or expense
satisfactory to the Trustee;
(d) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security and indemnity; and
(e) during such 60 day period, the Holders of at least a majority in
aggregate principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request,
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders, or to obtain or seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all such Holders.
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SECTION 507. COLLECTION SUITS BY THE TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days, or
(b) default is made in the payment of the principal of or premium, if
any, on any Security at the Maturity or Redemption Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of such Security and the Holder of any related Coupons, the whole amount
then due and payable on such Security and related Coupons for principal,
premium, if any, and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal and premium, if
any, and on any overdue interest, at the rate or rates prescribed therefor in
such Security and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Security and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Security, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related Coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or such
Securities or in aid of the exercise of any power granted herein, or to enforce
any other remedy available under this Indenture or by law.
SECTION 508. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company upon the Securities or the Principal
Property of the Company, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal of
and premium, if any, and interest on and Additional Amounts with respect to the
Securities 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
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities and Coupons
allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or Coupon in any such proceeding.
SECTION 509. PRIORITIES.
If the Trustee collects any money pursuant to this Article Five, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 607;
SECOND: to Holders of Securities in respect of which or for the
benefit of which such money has been collected for amounts due
and unpaid on such Securities for the principal thereof,
premium, if any, or interest thereon and Additional Amounts
with respect to, ratably, without preference or priority of
any kind, according to such amounts due and payable on such
Securities and related Coupons; and
THIRD: the balance, if any, to the Company.
Except as otherwise set forth in the Securities, the Trustee may fix a
Record Date and payment date for any payment to Holders pursuant to this
Section.
SECTION 510. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder of Securities pursuant to Section 511 or a suit
by Holders of Securities of more than 10% in aggregate principal amount of the
Outstanding Securities of any series.
SECTION 511. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right which is absolute and unconditional to receive
payment of the principal of, premium, if any, and interest on such Security on
the respective due dates expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to convert or exchange such Security in
accordance with its
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terms, if applicable, and to institute suit for the enforcement of such payment
or conversion or exchanges, and such right shall not be impaired without the
consent of such Holder.
ARTICLE SIX
THE TRUSTEE
SECTION 601. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) If an Event of Default occurs and is continuing with respect to the
Securities of any series, the Trustee shall exercise the rights and powers
vested in it by or pursuant to this Indenture with respect to that series and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any series, (i) the Trustee need perform only those duties
with respect to that series that are specifically set forth in this Indenture,
in such Securities or the Trust Indenture Act and no others; and (ii) in the
absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture (but
shall not be required to confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 601(c) does not limit the effect of Section
601(b);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 505.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to Section 601(a), (b), (c) and (e) and Section 602.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives security and indemnity reasonably satisfactory to it
against any loss, liability or expense (including reasonable counsel fees).
(f) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that the repayment of
such
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funds or liability is not reasonably assured to it under the terms of this
Indenture or indemnity reasonably satisfactory to the Trustee against such risk
or liability is not reasonably assured to it.
SECTION 602. RIGHTS OF THE TRUSTEE.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(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,
coupon or other paper or document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Order (in each case, other than delivery of
any Security, together with any related Coupons, to the Trustee for
authentication and delivery pursuant to Section 303 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
Coupons pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
coupon or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours and upon
reasonable notice, the books, records and premises of the Company, personally or
by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities. The Trustee shall not be accountable for the
Company's use of the proceeds from the Securities, and the Trustee shall not be
responsible for any statement in this Indenture or the Securities or any report
or certificate issued by the Company hereunder or any registration statement
relating to the Securities (other than the Trustee's Certificate of
Authentication and the Trustee's Statement of Eligibility on Form T- 1), or the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 604. NOTICE OF DEFAULTS.
If a Default occurs and is continuing with respect to the Securities of
any series and if it is known to the Trustee, the Trustee shall mail to each
Holder of a Security of that series notice of the Default within 90 days after
it becomes known to the Trustee unless such Default shall have been cured or
waived. Except in the case of a Default described in Section 501(a) or (b), the
Trustee may withhold such notice if and so long as a committee of Responsible
Officers in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities of that series. The Trustee shall not
be charged with knowledge of any Default unless a Responsible Officer assigned
to the Corporate Trust Department of the Trustee shall have actual knowledge of
the Default. The second sentence of this Section shall be in lieu of the proviso
to Trust Indenture Act Section 315(b). Said proviso is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Registrar
or any other Person that may be an agent of the Trustee or Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Registrar or such other
Person.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND INDEMNITY.
The Company covenants and agrees:
(a) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses, and advances of its agents and counsel; provided that,
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prior to any Default or Event of Default, the Trustee shall only have one
outside counsel), including all reasonable expenses and advances incurred or
made by the Trustee in connection with any Default or Event of Default or any
membership on any creditors' committee, except any such expense or advance as
may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee, its officers, employees, directors and
shareholders, for, and to hold it harmless against, any and all loss, liability
or expense, incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
Before, after or during an Event of Default with respect to the
Securities of a series, the Trustee shall have a claim and lien prior to the
Securities of that series as to all property and funds held by it hereunder for
any amount owing it for its fees and expenses or any predecessor Trustee
pursuant to this Section, except with respect to funds held by the Trustee or
any Paying Agent in trust for the payment of principal of or premium, if any, or
interest on or any Additional Amounts with respect to Securities or any related
Coupons pursuant to Section 306, Section 401 or Section 402.
The Company's payment and indemnity obligations pursuant to this
Section shall survive the discharge of this Indenture. When the Trustee renders
services or incurs expenses after the occurrence of a Default specified in
Section 501, the compensation for services and expenses are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 608. ELIGIBILITY; DISQUALIFICATION.
(a) The Trustee shall at all times satisfy the requirements of the
Trust Indenture Act Sections 310(a)(1) and 310(a)(2). The Trustee (or any
Affiliate thereof which has unconditionally guaranteed the obligations of the
Trustee hereunder) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recently published annual report of
condition. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) The Trustee shall comply with the Trust Indenture Act Section
310(b). In determining whether the Trustee has conflicting interests as defined
in the Trust Indenture Act Section 310(b)(1), the provisions contained in the
proviso to the Trust Indenture Act Section 310(b)(1) and the Trustee's Statement
of Eligibility on Form T-1 shall be deemed incorporated herein.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 610 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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(c) If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, it shall, within 90 days after ascertaining it has
such conflicting interest, either eliminate the conflicting interest or resign
with respect to the Securities of that series in the manner set forth in this
Section.
(d) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of at least a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(e) If at any time:
(i) the Trustee shall fail to comply with clause (c) of this
Section after written request therefor by the Company or by any Holder
of a Security who has been a bona fide Holder of a Security for at
least six months, or
(ii) the Trustee shall cease to be eligible under Section
608(a) and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent, or a receiver of Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(1) the Company by a Board Resolution may remove the Trustee with
respect to all Securities, or (2) subject to Section 510, any Holder of
a Security who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 610. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of at least a majority in principal amount of
the Outstanding Securities of such series, notice of such appointment shall be
delivered to the Company and the retiring Trustee. The successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 610, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner required by
Section 610, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
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(g) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and deeds of the Trustee with respect to the Securities of that or those
series which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (iii) 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 as co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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SECTION 611. SUCCESSOR TRUSTEE BY MERGER.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
ARTICLE SEVEN
REPORTS BY TRUSTEE AND COMPANY
SECTION 701. REPORTS BY TRUSTEE.
Within 60 days after each September 1, beginning with the September 1
next following the date of this Indenture, the Trustee shall mail to each
Holder, and such other holders that have submitted their names to the Trustee
for such purpose, a brief report dated as of such September 1 in accordance with
and to the extent required under Section 313 of the Trust Indenture Act
A copy of each report at the time of its mailing to Holders shall be
filed with the Company, the SEC and any securities exchange on which the
Securities are listed. The Company agrees to promptly notify the Trustee
whenever the Securities become listed on any securities exchange and of any
listing thereof.
SECTION 702. REPORTS BY COMPANY.
The Company shall file with the Trustee, within 15 days after it files
them with the SEC, copies of its annual report and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company
is not subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Trustee such information,
documents and reports (or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) which are specified in Section 13 or
15(d) of the Exchange Act. The Company shall also comply with the provisions of
Section 314(a) of the Trust Indenture Act.
Upon request of the Trustee, the Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
ARTICLE EIGHT
SUCCESSOR CORPORATION
SECTION 801. WHEN THE COMPANY MAY MERGE, ETC.
The Company may not consolidate with or merge with or into, or sell,
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to, any Person, and no Person shall consolidate with or merge into
the Company or
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convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to the Company, unless:
(a) the Person formed by or surviving such consolidation or merger or
to which such sale, conveyance, transfer or lease shall have been made (the
"Successor") if other than the Company (i) is organized and existing under the
laws of the United States of America or any state thereof or the District of
Columbia, and (ii) shall expressly assume by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and any Coupons and this
Indenture;
(b) immediately prior to and after giving effect to such transaction no
Default or Event of Default shall have occurred and be continuing; and
(c) the Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and such supplemental indenture comply with this
Indenture.
The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the obligor
on the Securities and Coupons with the same effect as if the Successor had been
named as the Company herein but, in the case of a sale, conveyance, transfer or
lease of all or substantially all of the assets of the Company, the predecessor
Company will not be released from its obligation to pay the principal of and
premium, if any, and interest on and Additional Amounts with respect to the
Securities and related Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
From time to time, when authorized by a resolution of the Board of
Directors, the Company and the Trustee, without notice to or the consent of any
Holders of Securities or Coupons, may amend or supplement this Indenture:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power herein
conferred upon the Company; provided, however, that in respect of any such
additional covenant, or restriction or condition on the Company, 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
(c) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture); or
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(d) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or premium, if any, or
interest on or any Additional Amounts with respect to Bearer Securities, to
permit Bearer Securities to be exchanged for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely affect
the interests of the Holders of Securities of any series or any related Coupons
in any material respect; or
(e) to change or eliminate any of the provisions of this Indenture,
provided, that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series and any
related Coupons as permitted by Sections 201 and 301, or in lieu of any such
supplemental indenture, the Company may provide the Trustee with an Officers'
Certificate with respect to the form or terms of such Securities or Coupons; or
(h) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
the related Coupons, if any, 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; or
(i) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or inconsistent
with any other provision herein or in any supplemental indenture, or to make any
other provisions with respect to matters or questions arising under this
Indenture, which shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding or any related Coupons in any material
respect; or
(j) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities as herein set forth; or
(k) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided that
any such action shall not adversely affect the interests of any Holder of a
Security of such series and any related Coupons or any other Security or Coupon
in any material respect; or
(l) to maintain qualification of this Indenture under the Trust
Indenture Act; or
(m) to make provisions with respect to conversion or exchange rights of
Holders of Securities of any series.
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 that may be
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necessary and desirable and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder; but the Trustee shall not be
obligated to enter into such supplemental indenture if such supplemental
indenture adversely affects the Trustee's own rights, duties or immunities under
this Indenture, in which case the Trustee may in its discretion enter into such
supplemental indenture.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture in any manner not
permitted by Section 901 or may waive future compliance by the Company with any
provisions of this Indenture with the consent of the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of each
series affected thereby then outstanding. Such an amendment or waiver may not,
without the consent of each Holder of any Securities affected thereby:
(a) change the Stated Maturity of the principal of, or premium, if any,
or interest on, or any Additional Amounts with respect to, any Security, or
reduce the principal amount of or the rate (or modify the manner of the
calculation of such rate) of interest on or any Additional Amounts with respect
to or any premium payable upon the redemption of any Security, or change any
obligation of the Company to pay Additional Amounts pursuant to Section 1004
(except as contemplated by Section 801 and permitted by Section 901(a)), or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 508, change the redemption provisions or change the Place of
Payment, Currency in which the principal of, premium, if any, or interest on, or
any Additional Amounts with respect to any Security is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or change any provision with respect to the conversion or
exchange of such Securities, or
(b) reduce the percentage of the principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or
(c) modify any of the provisions of this Section or Section 504 except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder of a Security or Coupon
with respect to changes in the references to "the Trustee" and concomitant
changes in this Section, in accordance with the requirements of Section 901(h).
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture, which shall have been included expressly and
solely for the benefit of one or more particular series of Securities and the
related Coupons, or which modifies the rights of the Holders of Securities of
such series and any of such Coupons with respect to such covenant or other
provision, shall be deemed not to adversely affect the rights under this
Indenture of the Holders of Securities of any other series or Coupons of any
other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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If certain Holders agree to defer or waive certain obligations of the
Company hereunder with respect to Securities held by them, such deferral or
waiver shall not affect the rights of any other Holder to receive the payment or
performance required hereunder in a timely manner.
After an amendment or waiver under this Section 902 becomes effective,
the Company shall mail to each Holder a notice briefly describing the amendment
or waiver. Any failure of the Company to mail such notices, or any defect
therein, shall not, however, in any way impair or affect the validity of such
amendment or waiver.
SECTION 903. COMPLIANCE WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article Nine
shall comply with the Trust Indenture Act.
SECTION 904. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, waiver or other action by Holders becomes
effective, a consent, waiver or any other action by a Holder of a Security
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Security or portion of the Security that evidences the same obligation as
the consenting Holder's Security, even if notation of the consent, waiver or
action is not made on such Security. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Security or
portion of the Security if the Trustee receives the notice of revocation before
the consent of the requisite aggregate principal amount of such Securities then
Outstanding has been obtained and not revoked. After an amendment, waiver or
action becomes effective, it shall bind every Holder of the Securities of the
related series, except as provided in Section 902.
The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Persons entitled to consent to any amendment or
waiver. If a Record Date is fixed, then, notwithstanding the first two sentences
of the immediately preceding paragraph, only Holders of Securities on such
Record Date or their duly designated proxies, and only those Persons, shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be such after
such Record Date. No such consent shall be valid or effective for more than 90
days after such Record Date.
SECTION 905. NOTATION ON OR EXCHANGE OF SECURITIES.
Securities of the related series authenticated and made available for
delivery after the execution of any supplemental indenture pursuant to this
Article Nine may, and shall, if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so modified to
conform, in the opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and made available for delivery by the Trustee in exchange for
Outstanding Securities.
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SECTION 906. EXECUTION OF SUPPLEMENTAL INDENTURES.
The Trustee shall execute any supplemental indenture authorized
pursuant to this Article Nine if the supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, execute it. In executing such supplemental
indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and Opinion of Counsel
stating that such supplemental indenture is authorized or permitted by this
Indenture.
SECTION 907. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes and
every Holder of Securities of the related series theretofore or thereafter
authenticated and made available for delivery hereunder shall be bound thereby.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest on and any Additional Amounts with respect to the Securities
of such series in accordance with the terms of the Securities, any related
Coupons and this Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest due on Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the Coupons for such interest as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any related Coupons may be presented and surrendered for payment;
provided, however, that if the Securities of such series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company shall maintain a Paying Agent
for the Securities of that series in London, Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of such series are listed on such exchange. The Company will give
prompt written notice to the Trustee and the Holders of the location, and any
change in the location, of such Office or Agency. If at any time the Company
shall fail to
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maintain any such required Office or Agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands related to the Securities of that
series may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any related Coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Bearer Securities of that series pursuant to Section 1004) at
the place specified for the purpose with respect to such Securities as provided
in or pursuant to this Indenture, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, if amounts owing with respect to any Bearer Securities shall
be payable in Dollars, payment of principal of, premium, if any, or interest on
and any Additional Amounts with respect to any such Security may be made at the
Corporate Trust Office of the Trustee or any Office or Agency designated by the
Company in the Borough of Manhattan, the City of New York, if (but only if)
payment of the full amount of such principal, premium, interest or Additional
Amounts at all offices outside the United States maintained for such purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (a) are denominated
in a Foreign Currency or (b) may be payable in a Foreign Currency, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, premium, if any, or interest on or Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
or premium, if any, interest or Additional Amounts so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, premium, if any, or interest on or any Additional Amounts with respect to
any Securities of such series, deposit with any Paying Agent a sum (in the
Currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
or premium, if any, interest or Additional Amounts so becoming due, such sum to
be held in trust for the benefit of the Persons entitled thereto, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
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SECTION 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
related Coupon the Additional Amounts as provided in or pursuant to this
Indenture or such Securities. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of or premium, if any, or interest on,
or in respect of, any Security of any series or any related Coupon or the net
proceeds received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established hereby or pursuant hereto to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal, premium, if any, or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company shall furnish to the Trustee and the principal Paying
Agent or Paying Agents, if other than the Trustee, an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and premium, if any, or interest on the Securities of
such series shall be made to Holders of Securities of such series or the related
Coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
such series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and its rights (charter and statutory) and franchises; provided,
however, that the foregoing shall not obligate the Company to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to any Holder.
SECTION 1006. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any of its
Subsidiaries to, purchase any Securities of that series by private treaty at a
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price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
SECTION 1007. RESTRICTIONS ON SECURED DEBT.
(a) The Company will not, nor will it permit any Restricted Subsidiary
to, issue, assume or guarantee any debt for money borrowed (hereinafter in this
Article Ten referred to as "Debt"), secured by a mortgage, security interest,
pledge, lien or other encumbrance (mortgages, security interests, pledges, liens
and other encumbrances being hereinafter called "lien" or "liens") upon any
Principal Property or upon any shares of stock or indebtedness of any Restricted
Subsidiary (whether such Principal Property, shares of stock or indebtedness are
now owned or hereafter acquired) without in any such case effectively providing
concurrently with the issuance, assumption or guaranty of any such Debt that the
Securities (together with, if the Company shall so determine, any other
indebtedness of or guaranty by the Company or such Restricted Subsidiary ranking
equally with the Securities and then existing or thereafter created) shall be
secured equally and ratably with such Debt; provided, however, that the
foregoing restrictions shall not apply to Debt secured by:
(i) liens on property, shares of stock or indebtedness of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(ii) liens on property existing at the time of acquisition of
such property by the Company or a Restricted Subsidiary, or liens to
secure the payment of all or any part of the purchase price of such
property upon the acquisition of such property by the Company or a
Restricted Subsidiary prior to, at the time of, or within one year
after the later of the acquisition, the completion of construction
(including any improvements on an existing property) or the
commencement of commercial operation of such property, which Debt is
incurred for the purpose of financing all or any part of the purchase
price thereof or construction or improvements thereon; provided,
however, that in the case of any such acquisition, construction or
improvement the lien shall not apply to any property theretofore owned
by the Company or a Restricted Subsidiary, other than, in the case of
any such construction or improvement, any theretofore unimproved real
improvement, on which the property so constructed, or the improvement
is located;
(iii) liens securing Debt of a Restricted Subsidiary owing to
the Company or to another Restricted Subsidiary;
(iv) liens on property of a corporation existing at the time
such corporation is merged into or consolidated with the Company or a
Restricted Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary;
(v) any lien, paramount to all other liens, upon moneys
advanced or paid pursuant to any contracts for production, research or
development with or for the government, directly or indirectly,
providing for advance, partial or progress payments on such contracts,
or upon any material or supplies in connection with the performance of
such contracts to secure such payments to the government; and liens or
other evidences of interest in favor of the government, paramount to
all other liens, on any equipment, tools, machinery, land or buildings
hereafter
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constructed, installed or purchased by the Company or a Restricted
Subsidiary primarily for the purpose of manufacturing or producing any
product, or performing any research or development work directly or
indirectly, for the government to secure indebtedness incurred and
owing to the government for the construction, installation or purchase
of such equipment, tools, machinery, land or buildings (including
without limitation liens incurred in connection with pollution control,
industrial revenue or similar financings). For the purpose of this
subsection (v), "government" shall mean the government of the United
States and any department or agency thereof or the government of any
State or any instrumentality thereof;
(vi) liens existing at the date of this Indenture;
(vii) liens on particular property (or any proceeds of the
sale thereof) to secure all or any part of the cost of exploration,
drilling, mining or development thereof (including construction of
facilities for field processing of minerals) intended to obtain or
materially increase the production and sale or other disposition of
oil, gas, coal, uranium, copper or other minerals therefrom, or any
indebtedness created, issued, assumed or guaranteed to provide funds
for any or all such purposes; or
(viii) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any lien
referred to in the foregoing clauses (i) to (vii), inclusive; provided,
however, that the principal amount of Debt secured thereby shall not
exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which
secured the lien so extended, renewed or replaced (plus improvements on
such property).
(b) Notwithstanding the foregoing provisions of this Section, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by a lien which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
Debt of the Company and its Restricted Subsidiaries secured by a lien which (if
originally issued, assumed or guaranteed at such time) would otherwise be
subject to the foregoing restrictions (not including Debt permitted to be
secured under clauses (i) through (viii) above), does not at the time exceed 5%
of the consolidated stockholders' equity of the Company, as shown on the audited
consolidated financial statements of the Company as of the end of the fiscal
year preceding the date of determination.
(c) For the purposes of this Section the following types of
transactions shall not be deemed to create Debt secured by a lien: the sale or
other transfer of (i) oil, gas, coal, uranium, copper or other minerals in place
for a period of time until, or in an amount such that, the purchaser will
realize therefrom a specified amount of money (however determined) or a
specified amount of such minerals, or (ii) any other interest in property of the
character commonly referred to as a "production payment."
SECTION 1008. RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, nor will it permit any Restricted Subsidiary to,
enter into any arrangement with any person providing for the leasing by the
Company or any Restricted Subsidiary of any Principal Property of the Company or
any Restricted Subsidiary (whether such Principal Property is now owned or
hereafter acquired) (except for temporary leases for a term of not more than
three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted
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Subsidiaries), which property has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such person, unless (a) the Company or
such Restricted Subsidiary would be entitled, pursuant to the provisions of
Section 1007, to issue, assume or guarantee Debt secured by a lien upon such
property at least equal in amount to the Attributable Debt (defined below) in
respect of such arrangement without equally and ratably securing the Securities;
provided, however, that from and after the date on which such arrangement
becomes effective the Attributable Debt in respect of such arrangement shall be
deemed for all purposes under Section 1007 and this Section to be Debt subject
to the provisions of Section 1007; or (b) the Company shall apply an amount in
cash equal to the Attributable Debt in respect of such arrangement to the
retirement (other than any mandatory retirement or by way of payment at
maturity), within 90 days of the effective date of any such arrangement, of Debt
of the Company or any Restricted Subsidiary (other than Debt owned by the
Company or any Restricted Subsidiary and other than Debt of the Company which is
subordinated to the Securities) which by its terms matures at or is extendible
or renewable at the option of the obligor to a date more than 12 months after
the creation of such Debt.
For the purposes of this Section the term "Attributable Debt" shall
mean the present value (discounted at the rate of 1% per annum over the weighted
average yield to maturity of the Outstanding Securities hereunder, such average
being weighted by the principal amount of the Securities of each series or, in
the case of Original Issue Discount Securities, such amount to be determined as
provided in the definition of "Outstanding") of the obligation of a lessee for
rental payments (excluding from such rental payments, however, amounts payable
with respect to income and property taxes, insurance, maintenance, and other
similar charges and contingent rents, such as those based on sales) during the
remaining term of any lease (including any period for which such lease has been
extended).
SECTION 1009. COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each of the Company's fiscal years, an Officers' Certificate stating
whether or not the signer knows of any Default or Event of Default. Such
certificate shall contain a certification from the principal executive officer,
principal financial officer or principal accounting officer of the Company as to
his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section, such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Indenture. If such Officer does know of such a
Default or Event of Default, the Officers' Certificate shall describe any such
Default or Event of Default, and its status. Such Officers' Certificate need not
comply with Sections 102 and 103.
(b) The Company shall deliver to the Trustee any information reasonably
requested by the Trustee in connection with the compliance by the Trustee or the
Company with the Trust Indenture Act.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. REDEMPTION: NOTICE TO TRUSTEE.
(a) The Company may redeem the Securities of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 301.
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(b) If any or all of the Securities are to be redeemed pursuant to this
Section, the Company shall deliver to the Trustee no more than 60 and no less
than 45 days prior to the Redemption Date a Company Order specifying the series
and principal amount of Securities to be redeemed and the Redemption Date and
Redemption Price for such Securities. Such Company Order shall be accompanied by
a Board Resolution authorizing such redemption.
SECTION 1102. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the outstanding Securities of a series are to be
redeemed at any time, the Trustee shall select the Securities of such series to
be redeemed by lot or by any other method the Trustee considers fair and
appropriate. The Trustee shall make the selection at least 30 but not more than
60 days before the Redemption Date from outstanding Securities of such series
not previously called for redemption. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 1103. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before the Redemption Date,
the Trustee, in the Company's name and at the Company's expense, shall mail or
cause to be mailed a notice of redemption by first-class mail, postage prepaid,
to each Holder of Securities to be redeemed at such Holder's last address as it
appears in the Register.
The notice of redemption shall identify the Securities to be redeemed,
the provision of the Securities or this Indenture pursuant to which the
Securities called for redemption are being redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that payment of the Redemption Price of Securities called for
redemption will be made only upon surrender of such Securities to the Paying
Agent;
(e) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification and principal amounts of the particular
Securities to be redeemed and that, on and after the Redemption Date, upon
surrender of such Securities, a new Security or Securities of the same series
and of like tenor and in a principal amount equal to the unredeemed portion
thereof will be issued;
(f) that, unless the Company defaults in paying the Redemption Price of
the Securities called for redemption, including accrued interest thereon to the
Redemption Date, interest will cease to accrue on such Securities on and after
the Redemption Date;
(g) the place or places where such Securities, together (in the case of
Bearer Securities) with all related Coupons, if any, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price and
any accrued interest and Additional Amounts pertaining thereto;
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(h) that the redemption is for a sinking fund, if such is the case;
(i) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
Coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing Coupon or Coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished;
(j) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 308 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made;
(k) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or other securities, the conversion or exchange
price or rate, the date or dates on which or the period or periods during which
the right to convert or exchange the principal of the Securities of such series
to be redeemed will commence or terminate and the place or places where such
Securities may be surrendered for conversion or exchange; and
(l) the CUSIP number or the Euroclear or the Cedel Bank, S.A. reference
numbers of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
Any notice of redemption given in the manner provided herein shall be
conclusively presumed to have been given, whether or not such notice is actually
received. Failure to mail any notice or defect in the mailed notice or the
mailing thereof in respect of any Security shall not affect the validity of the
redemption of any other Security.
SECTION 1104. EFFECT OF NOTICE OF REDEMPTION.
After notice of redemption has been given, Securities called for
redemption shall become due and payable on the Redemption Date at the Redemption
Price and from and after the Redemption Date (unless the Company shall default
in the payment of the Redemption Price and accrued interest), such Securities
shall cease to bear interest. Upon the later of the Redemption Date and the date
such Securities are surrendered to the Paying Agent, such Securities shall be
paid at the Redemption Price, plus accrued interest to the Redemption Date,
provided that installments of interest on Securities with an Interest Payment
Date which is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, registered as such at the close of business on the Regular
Record Dates therefor according to their terms and provisions.
If any Bearer Security surrendered for redemption shall not be
accompanied by all Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing Coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that any interest
or Additional Amounts represented by Coupons shall be payable only upon
presentation and surrender of
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those Coupons at an Office or Agency for such Security located outside of the
United States except as otherwise provided in Section 1002.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or an Affiliate is the Paying Agent, shall
segregate and hold in trust or cause such Affiliate to segregate and hold in
trust) money sufficient to pay the Redemption Price of, and accrued interest on,
all Securities to be redeemed on that Redemption Date. The Paying Agent shall
return to the Company any money in excess of the amount sufficient to pay the
Redemption Price of, and accrued interest on and Additional Amounts with respect
to, all Securities to be redeemed and any interest accrued on the amount
deposited pursuant to this Section.
SECTION 1106. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security of the same series and in a
principal amount equal to the unredeemed portion of such Security.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (a) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons, and (b) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, provided that
such series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the
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Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities of any
series in lieu of cash payments pursuant to this Section, the principal amount
of Securities of such series to be redeemed in order to exhaust the aforesaid
cash payment shall be less than $100,000, the Trustee need not call Securities
of such series for redemption, except upon a Company Order, and such cash
payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment on Securities of such series, provided, however,
that the Trustee or such Paying Agent shall at the request of the Company from
time to time pay over and deliver to the Company any cash payment so being held
by the Trustee or such Paying Agent upon delivery by the Company to the Trustee
of Securities of that series purchased by the Company having an unpaid principal
amount equal to the cash payment requested to be released to the Company.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1102 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1103. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1104 and 1106.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article Thirteen to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, the City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the
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manner provided in Section 106, not less than 20 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 20
days after receipt of such request (whichever is required by Section 106) or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, the City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (a) of
this Section.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities of
such series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote at least a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote such percentage in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1302(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of at least a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any
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resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture or any supplemental
indenture expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related Coupons,
whether or not such Holders were present or represented at the meeting.
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote at least a majority in principal amount of
the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote at least a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
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SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested all as of the day and year first above written.
HERCULES INCORPORATED
By
-----------------------------
Title:
Attest:
- -----------------------------
Title:
(SEAL)
THE CHASE MANHATTAN BANK
as Trustee
By
-----------------------------
Title:
Attest:
- -----------------------------
Title:
(SEAL)
65
<PAGE> 72
STATE OF DELAWARE )
: ss.:
COUNTY OF NEWCASTLE )
On the ____ day of _________, ____, before me personally came
____________________, to me known, who, being by me duly sworn, did
depose and say that he is _______________________ of Hercules
Incorporated, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that
it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
-----------------------------
Notary Public
(SEAL)
66
<PAGE> 73
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF PHILADELPHIA )
On the ________ day of _________, ____, before me personally came
________________, to me known, who, being by me duly sworn, did depose
and say that he is a ______________________ of The Chase Manhattan
Bank, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation,
and that he signed his name thereto by like authority.
--------------------------------
Notary Public
(SEAL)
67
<PAGE> 1
HERCULES INCORPORATED, AS ISSUER
AND
THE CHASE MANHATTAN BANK, AS TRUSTEE
INDENTURE
DATED AS OF _________ __, ____
SUBORDINATED DEBT SECURITIES
<PAGE> 2
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions and Rules of Construction............................1
Section 102. Certificate and Opinion as to Conditions Precedent..............10
Section 103. Statements Required in Certificate or Opinion...................10
Section 104. Acts of Holders.................................................11
Section 105. Notices to Trustee and Company..................................12
Section 106. Notice to Holders of Securities; Waiver.........................12
Section 107. Communication by Holders with Other Holders.....................13
Section 108. Language of Notices.............................................13
Section 109. Trust Indenture Act Controls....................................13
Section 110. Effect of Headings and Table of Contents........................13
Section 111. Successors and Assigns..........................................13
Section 112. Severability Clause.............................................14
Section 113. Benefits of Indenture...........................................14
Section 114. Governing Law...................................................14
Section 115. Legal Holidays..................................................14
Section 116. Counterparts....................................................14
Section 117. No Recourse Against Others......................................14
Section 118. No Adverse Interpretation of Other Agreements...................14
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.................................................15
Section 202. Form of Trustee's Certificate of Authentication.................15
Section 203. Securities in Global Form.......................................15
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series............................16
Section 302. Currency; Denominations.........................................19
Section 303. Execution, Authentication and Delivery..........................20
Section 304. Temporary Securities............................................22
Section 305. Registrar and Paying and Conversion Agents......................22
Section 306. Paying Agent to Hold Money in Trust.............................23
Section 307. List of Holders.................................................23
Section 308. Transfer and Exchange...........................................24
Section 309. Replacement Securities..........................................25
Section 310. Book-Entry System...............................................26
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<PAGE> 3
Section 311. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved...............27
Section 312. Persons Deemed Owners...........................................29
Section 313. Cancellation....................................................29
Section 314. Compliance with Certain Laws and Regulations....................30
Section 315. Return of Moneys Held by the Trustee and Paying Agent Unclaimed
for Two Years...................................................30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.........................30
Section 402. Satisfaction, Discharge and Defeasance of Securities of any
Series..........................................................32
Section 403. Application of Trust Money......................................35
ARTICLE FIVE
DEFAULTS AND REMEDIES
Section 501. Events of Default...............................................35
Section 502. Acceleration....................................................36
Section 503. Other Remedies..................................................37
Section 504. Waiver of Past Defaults.........................................37
Section 505. Control by Holders..............................................38
Section 506. Limitation on Suits.............................................38
Section 507. Collection Suits by the Trustee.................................39
Section 508. Trustee May File Proofs of Claim................................39
Section 509. Priorities......................................................40
Section 510. Undertaking for Costs...........................................40
Section 511. Unconditional Right of Holders to Receive Principal, Premium
and Interest....................................................40
ARTICLE SIX
THE TRUSTEE
Section 601. Duties and Responsibilities of the Trustee......................41
Section 602. Rights of the Trustee...........................................42
Section 603. Not Responsible for Recitals or Issuance of Securities..........43
Section 604. Notice of Defaults..............................................43
Section 605. May Hold Securities.............................................43
Section 606. Money Held in Trust.............................................43
Section 607. Compensation and Indemnity......................................43
Section 608. Eligibility; Disqualification...................................44
Section 609. Resignation and Removal; Appointment of Successor...............44
Section 610. Acceptance of Appointment by Successor..........................46
Section 611. Successor Trustee by Merger.....................................47
ARTICLE SEVEN
REPORTS BY TRUSTEE AND COMPANY
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<PAGE> 4
Section 701. Reports by Trustee..............................................47
Section 702. Reports by Company..............................................47
ARTICLE EIGHT
SUCCESSOR CORPORATION
Section 801. When the Company May Merge, Etc.................................47
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders..............48
Section 902. Supplemental Indentures with Consent of Holders.................50
Section 903. Compliance with Trust Indenture Act.............................51
Section 904. Revocation and Effect of Consents, Waivers and Actions..........51
Section 905. Notation on or Exchange of Securities...........................51
Section 906. Execution of Supplemental Indentures............................52
Section 907. Effect of Supplemental Indentures...............................52
Section 908. Subordination Unimpaired........................................52
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest......................52
Section 1002. Maintenance of Office or Agency.................................52
Section 1003. Money for Securities Payments to Be Held in Trust...............53
Section 1004. Additional Amounts..............................................54
Section 1005. Corporate Existence.............................................54
Section 1006. Purchase of Securities by Company or Subsidiary.................55
Section 1007. Restrictions on Secured Debt....................................55
Section 1008. Restrictions on Sale and Leaseback Transactions.................57
Section 1009. Compliance Certificates.........................................57
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Redemption: Notice to Trustee...................................58
Section 1102. Selection of Securities to be Redeemed..........................58
Section 1103. Notice of Redemption............................................58
Section 1104. Effect of Notice of Redemption..................................59
Section 1105. Deposit of Redemption Price.....................................60
Section 1106. Securities Redeemed in Part.....................................60
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article........................................60
Section 1202. Satisfaction of Sinking Fund Payments with Securities...........61
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<PAGE> 5
Section 1203. Redemption of Securities for Sinking Fund.......................61
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1301. Purposes for Which Meetings May Be Called.......................61
Section 1302. Call, Notice and Place of Meetings..............................62
Section 1303. Persons Entitled to Vote at Meetings............................62
Section 1304. Quorum; Action..................................................62
Section 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings........................................................63
Section 1306. Counting Votes and Recording Action of Meetings.................64
ARTICLE FOURTEEN
SUBORDINATION
Section 1401. Agreement to Subordinate........................................64
Section 1402. Rights of Senior Indebtedness in the Event of Insolvency, etc.,
of the Company..................................................64
Section 1403. Payment Over of Proceeds Received on Securities.................65
Section 1404. Payments to Holders.............................................67
Section 1405. Holders of Securities Authorize Trustee to Effectuate
Subordination of Securities.....................................67
Section 1406. Notice to Trustee...............................................67
Section 1407. Trustee May Hold Senior Indebtedness............................67
Section 1408. Applicability of Article Fourteen to Paying Agents..............68
Section 1409. Funds Held in Trust Pursuant to Article Four....................68
iv
<PAGE> 6
Hercules Indenture
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
Trust Indenture Indenture
Act Section Section
----------- -------
Section 310(a)(1) ............................................. 303; 608
(a)(2) ............................................. 303; 608
(a)(3) ............................................. Not Applicable
(a)(4) ............................................. Not Applicable
(a)(5) ............................................. Not Applicable
(b) ............................................. 608; 609
(c) ............................................. Not Applicable
Section 311(a) ............................................. Not Applicable
(b) ............................................. Not Applicable
(c) ............................................. Not Applicable
Section 312(a) ............................................. 307
(b) ............................................. 107
(c) ............................................. 107
Section 313(a) ............................................. 701
(b)(1) ............................................. Not Applicable
(b)(2) ............................................. Not Applicable
(c) ............................................. 701
(d) ............................................. 701
Section 314(a) ............................................. 702; 1009
(b) ............................................. Not Applicable
(c)(1) ............................................. 102; 103; 303
(c)(2) ............................................. 102; 103; 303
(c)(3) ............................................. Not Applicable
(d) ............................................. Not Applicable
(e) ............................................. 103
(f) ............................................. Not Applicable
Section 315(a) ............................................. 601(b); 602
(b) ............................................. 106; 602; 604
(c) ............................................. 601(a); 602
(d) ............................................. 601(c); 602
(e) ............................................. 510
Section 316(a)(1)(A)........................................... 505
(a)(1)(B)........................................... 502; 504
(a)(2) ............................................. Not Applicable
(a)(last sentence).................................. 101
(b) ............................................. 511
(c) ............................................. 104
Section 317(a)(1) ............................................. 507
(a)(2) ............................................. 508
(b) ............................................. 306; 1003
Section 318(a) ............................................. 109
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<PAGE> 7
(b) ............................................. Not Applicable
(c) ............................................. 109
- ----------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Indenture.
vi
<PAGE> 8
INDENTURE, dated as of _________ __, ____, between Hercules
Incorporated, a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), having its principal office at Hercules
Plaza, 1313 North Market Street, Wilmington, Delaware 19894-0001 and The Chase
Manhattan Bank, a banking corporation duly organized and existing under the laws
of the State of New York, as Trustee (the "Trustee"), having its Corporate Trust
Office at One Liberty Place, 52nd Floor, 1650 Market Street, Philadelphia,
Pennsylvania 19103.
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 subordinated
unsecured debentures, notes or other evidences of Indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount to bear such rates of
interest, to mature at such time or times, be issued in one or more series and
to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined), as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS AND RULES OF CONSTRUCTION.
(a) In addition to the following, certain terms used principally in
certain Articles hereof are defined in those Articles:
"Additional Amounts" means any additional amounts that are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified herein or therein and which
are owing to such Holders.
"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. When used with respect to any Person,
"control" means the power to direct the management and policies of such Person,
<PAGE> 9
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 303 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. 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.
"Bankruptcy Law" means Title 11 of the United States Code, or any
similar federal or state bankruptcy, insolvency, reorganization or other law for
the relief of debtors.
"Bearer Security" means any Security in the form set forth pursuant to
Section 301 or established pursuant to Section 201 which is payable to bearer.
"Board of Directors" means either the Board of Directors of the Company
or the Finance Committee of such Board or any other committee of such Board duly
authorized to act generally or in any particular respect for the Company
hereunder.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or the Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee or (ii) a certificate signed by the
authorized officer or officers to whom the Board of Directors has delegated its
authority, and in each case, delivered to the Trustee.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in the City of New York or Wilmington, Delaware
are authorized or required by law, regulation or executive order to close, or
any other day established as contemplated by Section 301.
"Cedel Bank, S.A." means Centrale de Livraison de Valeurs, S.A.
"Common Stock" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means Hercules Incorporated, a Delaware corporation, or any
successor thereto.
"Company Order" means a written request or order signed in the name of
the Company by an Officer of the Company and delivered to the Trustee.
"Consolidated Net Tangible Assets" means as of any particular time the
aggregate amount of assets after deducting therefrom (a) all current liabilities
and (b) all goodwill, patents, copyrights, trademarks, tradenames, unamortized
debt discount and expense and other like intangibles, all as shown in
2
<PAGE> 10
the most recent consolidated financial statements of the Company and its
Subsidiaries prepared in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the office of the Trustee for the
conduct of corporate trust business at which matters related to this Indenture
are administered. Initially the Corporate Trust Office will be at One Liberty
Place, 52nd Floor, 1650 Market Street, Philadelphia, Pennsylvania 19103
(Telephone: (215) 988-1329, Telecopy: (215) 972-8372). The Corporate Trust
Office may be changed by notice to the Company from the Trustee.
"Corporation" means a corporation, limited liability company,
association, company, partnership, joint-stock company or business trust.
"Coupon" means any interest Coupon appertaining to a Bearer Security.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or premium, if any, or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"Depository" means, with respect to any Security issuable or issued in
the form of one or more global Securities, the Person designated as Depository
by the Company in or pursuant to this Indenture, which Person must be, for a
Global Security in registered form, a clearing agency registered under the
Exchange Act, and, if so provided with respect to any Security, any successor to
such Person. If at any time there is more than one such Person,"Depository"
shall mean, with respect to any Securities, the qualifying entity which has been
appointed with respect to such Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Community.
"Euroclear" means the operator of the Euroclear System.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
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<PAGE> 11
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency or currency unit
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 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.
"Global Security" means a Security in the form prescribed in Section
203 evidencing all or part of a series of Securities, issued to the Depository
for such series or its nominee, and registered in the name of such Depository or
nominee.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or premium, if any, or interest on or any Additional Amounts with
respect to such Security shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder," when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in the
Register and in the case of a Bearer Security the bearer thereof and, in the
case of any Coupon, means the bearer thereof.
"Indebtedness," with respect to any Person, means indebtedness for
borrowed money or for the unpaid purchase price of real or personal property
(excluding trade debt payables arising in the ordinary course of business) of,
or guaranteed by, such Person and computed in accordance with GAAP.
"Indenture" means this instrument as it may from time to time be
supplemented or amended from time to time in accordance with the terms hereof,
including the provisions of the Trust Indenture Act that are deemed a part
hereof.
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
4
<PAGE> 12
promulgated by the SEC thereunder, who may be the independent public accountants
regularly retained by the Company or who may be other independent public
accountants.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security that
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security that provides for the payment
of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of any installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise, and includes the Redemption Date.
"Office" or "Agency," with respect to any Securities, means an office
or agency of the Company maintained or designated as a Place of Payment for such
Securities pursuant to Section 305 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 305 or, to the
extent designated or required by Section 305 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officer" means, with respect to any corporation, any Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
such corporation.
"Officers' Certificate" means a certificate signed by either Co-Chief
Executive Officer, the Chief Financial Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, that complies with the requirements of
Sections 102 and 103 and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of the Company, or any other counsel who shall be reasonably acceptable
to the Trustee and provided that the General Counsel and the Assistant General
Counsel of the Company shall be deemed to be reasonably acceptable to the
Trustee, containing the applicable information specified in Sections 102 and
103.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture that provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
5
<PAGE> 13
(a) any such Security theretofore cancelled by the Trustee or the
Registrar or delivered to the Trustee or the Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant hereto (other
than pursuant to Section 402) with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities and any related Coupons, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance pursuant to the terms hereof, except to the extent provided in
Section 402;
(d) any such Security which has been paid pursuant to Section 309 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, unless there shall have been presented to
the Trustee proof satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation of the Company; and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities, if the terms of such Security
provide for such conversion or exchange pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (i) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Indexed Security that
may be counted in making such determination and that shall be deemed outstanding
for such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided in or pursuant to this
Indenture, (iii) the principal amount of a Security denominated in a Foreign
Currency or currencies shall be the Dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above), of such Security, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, or upon
any such determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any related Coupons or an Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and premium, if any and any interest on or any Additional Amounts
with respect to, any Security or any related Coupon on behalf of the Company.
6
<PAGE> 14
"Person" means any individual, corporation, joint venture, joint stock
association, trust, unincorporated organization or government or any agency or
political subdivision thereof or any other entity.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
1002, the principal of and premium, if any, and any interest on or any
Additional Amount with respect to the Securities and related Coupons of that
series are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 309 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security and/or related Coupon
shall be deemed to evidence the same Indebtedness as the mutilated, destroyed,
lost or stolen Security and/or related Coupon, as the case may be.
"Principal Property" means any manufacturing plant or other facility
owned by the Company or any Restricted Subsidiary, whether now owned or
hereafter acquired, which is located within the continental United States and,
in the opinion of the Board of Directors or an officer designated by the Board
of Directors, is of material importance to the total business conducted by the
Company and its Restricted Subsidiaries taken as a whole.
"Redemption Date," with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form set forth pursuant
to Section 201 or established pursuant to Section 301 which is registered in the
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date for the Registered Securities of any series means the date specified for
such Registered Securities as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
Senior Vice President, any Vice President, any Assistant Vice President, any
Trust Officer, or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary all the physical property
of which is located within the continental United States, which owns a Principal
Property or in which the Company's investment, whether in the form of equity or
debt, is in excess of 10% of the Consolidated Net Tangible Assets of the Company
as of the end of the fiscal year preceding the date of determination; provided,
however, that the term "Restricted Subsidiary" shall not include any Subsidiary
which is principally engaged in financing exports from or operations outside the
continental United States.
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"SEC" means the Securities and Exchange Commission.
"Securities" means any securities of any series issued, authenticated
and delivered under this Indenture.
"Senior Indebtedness" means (i) the principal of and premium, if any,
on and interest on all of the Company's indebtedness for money borrowed, other
than the Securities, whether outstanding on the date of execution of this
Indenture or thereafter created, assumed or incurred, except such indebtedness
as is by its terms expressly stated to be pari passu or subordinate in right of
payment to the Securities, (ii) any amounts payable under swap transactions and
(iii) any deferrals, renewals or extensions of the indebtedness referred to in
clause (i) or (ii) above. The term "indebtedness for money borrowed" as used in
the foregoing sentence shall include, without limitation, any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets (excluding trade payables arising in the ordinary course
of business). Notwithstanding anything to the contrary in this Indenture or the
Securities, Senior Indebtedness shall not include (i) any indebtedness of the
Company which, by its terms or the terms of the instrument creating or
evidencing it, is subordinate in right of payment to or pari passu with the
Securities or (ii) any indebtedness of the Company to a Subsidiary.
A "series" of Securities means all Securities denoted as part of the
same series authorized by or pursuant to a particular Board Resolution or a
supplemental indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date determined pursuant to Section
307.
"Stated Maturity," when used with respect to any Security or any
installment of principal of or interest on or any Additional Amounts with
respect to such Security, means the date specified in such Security or a Coupon
representing such installment of interest as the fixed date on which the
principal of such Security or such installment of principal or interest is, or
such Additional Amounts are, due and payable.
"Stated Maturity Date," with respect to any Security, means the date
specified for such Security as the fixed date on which the principal of such
Security is due and payable.
"Subsidiary" means any corporation or other business entity of which
more than 50% of the total voting power of shares of capital stock or other
interests (including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers,
trustees or the governing individuals or body thereof is at the time owned or
controlled, directly or indirectly, by (i) the Company, (ii) the Company and one
or more Subsidiaries, or (iii) one or more Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and as in effect on the date of this Indenture; provided, however, that if such
Act is amended after such date, Trust Indenture Act means, to the extent
required by any such amendment, such Act as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean
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such successor, and if at any time there is more than one such Person, "Trustee"
as used with respect to Securities of any series shall mean the Trustee with
respect to Securities of that series.
"United States" or "U.S." means the United States of America (including
the States and the District of Columbia), its territories and possessions, and
other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
(b) Certain other definitions are found in:
Term Defined in Section
---- ------------------
"Act"................................................ 104
"Attributable Debt".................................. 1008
"Conversion Agent"................................... 305
"Custodian".......................................... 501
"Debt"............................................... 1007
"Default"............................................ 501
"Defaulted Interest"................................. 311
"Event of Default"................................... 501
"Legal Holiday"...................................... 115
"Notice of Default".................................. 501
"Register"........................................... 305
"Registrar".......................................... 305
"Successor".......................................... 801
(c) Whenever this Indenture refers to a provision of the Trust
Indenture Act, such provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"indenture securities" means the 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 Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by SEC rule have the meanings assigned to them by
such definitions.
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(d) Unless the context otherwise requires, the following rules of
construction are used in this Indenture:
(1) each capitalized term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with U.S. 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; and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
SECTION 102. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (complying with Section 103) stating that,
in the opinion of such Officer, all conditions precedent to the taking of such
action have been complied with; and
(b) if applicable, an Opinion of Counsel (complying with Section 103)
stating that, in the opinion of such counsel all such conditions precedent to
the taking of such action have been complied with.
SECTION 103. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(a) a statement that each Person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such Officers'
Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
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(d) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
matters of fact not involving any legal conclusion, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders, in person or by an agent
duly appointed in writing and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository that
is a Holder of a Global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders, and a Depository that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interests in any such Global Security through such Depository's
standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as Depository, by any trust
company, bank, banker or other Depository reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such Depository, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(i) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (ii) such Bearer Security is produced
to the Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer Security
is no longer Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities held by the Person so executing such instrument or writing and
the date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
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(e) If the Company solicits from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by or pursuant to a resolution of its Board of Directors,
fix in advance a Record Date for the determination of Holders entitled to give
such Act, but the Company shall have no obligation to do so. If such a Record
Date is fixed, such Act may be given before or after such Record Date, but only
Holders of record at the close of business on such Record Date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such Act, and for that purpose the Outstanding Securities shall be computed as
of such Record Date.
(f) Any Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. NOTICES TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument, to the attention of its Secretary, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(a) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each Holder
of a Registered Security affected by such event, at the address of such Holder
as it appears in the Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice; and
(b) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in the City of New York and,
if such Securities are then listed on any stock exchange outside the United
States, in an Authorized Newspaper in such city as the Company shall advise the
Trustee that such stock exchange so requires, on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and the
second such publication not later than the latest date, prescribed for the
giving of such notice. In case of the suspension of publication of any
Authorized Newspaper or for any other cause it shall be impracticable to publish
any notice to Holders of Bearer Securities as provided above, then notification
to Holders of Bearer Securities shall be given in any other
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<PAGE> 20
manner approved by the Trustee, and shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Failure to give a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is given in the manner provided above, it is duly given,
whether or not received by the addressee.
If the Company gives a notice or communication to the Holders, it shall
deliver a copy to the Trustee and each Registrar and Paying Agent.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. COMMUNICATION BY HOLDERS WITH OTHER 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 Securities. The Company, the Trustee, the Registrar, the Paying
Agent and anyone else shall have the protection provided by Section 312(c) of
the Trust Indenture Act.
SECTION 108. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 109. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of Section 318(c) of the Trust Indenture Act,
the imposed duties shall control. The provisions of Sections 310 to 317,
inclusive, of the Trust Indenture Act that impose duties on any Person
(including provisions automatically deemed included in an indenture unless the
indenture provides that such provisions are excluded) are a part of and govern
this Indenture, except as, and to the extent, they are expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
SECTION 110. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof, and shall in
no way modify or restrict any of the terms or provisions hereof.
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SECTION 111. SUCCESSORS AND ASSIGNS.
All agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successors and assigns.
SECTION 112. SEVERABILITY CLAUSE.
In case any provision in this Indenture or the Securities or Coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 113. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or Coupons, express or
implied, shall give to any Person, other than the parties hereto, any Registrar,
any Paying Agent and their successors hereunder and the Holders of Securities
and Coupons, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 114. GOVERNING LAW.
This Indenture and the Securities and Coupons shall be governed by and
construed in accordance with the laws of the State of Delaware as applied to
contracts made and performed within the State of Delaware, without regard to its
principles of conflicts of laws, except that the rights, limitations of rights,
obligations, duties and immunities of the Trustee shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 115. LEGAL HOLIDAYS.
A "Legal Holiday" is any day other than a Business Day. If any
specified date (including a date for giving notice) is a Legal Holiday, the
action to be taken on such date shall be taken on the next succeeding day that
is not a Legal Holiday, and if such action is a payment in respect of the
Securities, unless otherwise specified pursuant to Section 301 no principal,
premium, if any, or interest installment shall accrue in respect of such payment
for the intervening period.
SECTION 116. COUNTERPARTS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. Any signed copy shall be sufficient proof of this Indenture.
SECTION 117. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such
obligations. By accepting a Security, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for
the issuance and sale of the Securities.
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SECTION 118. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related Coupons shall be in substantially
the forms (including permanent global form) as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or Coupons, as evidenced by their execution of the Securities or Coupons.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest Coupons attached.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
Coupons, as evidenced by their execution of such Securities or Coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 609, the Trustee's certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The Chase Manhattan Bank
As Trustee
By______________________
Authorized Officer
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 301, then any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding
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Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
Notwithstanding the provisions of Sections 311, unless otherwise
specified as contemplated by Section 301, payment of principal of and premium,
if any, and interest on and any Additional Amounts with respect to, any Security
in temporary or permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 312 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent Global Security as shall be
specified in a written statement of the Holder of such permanent Global Security
or, in the case of a permanent Global Security in bearer form, of Euroclear or
Cedel Bank, S.A., which is produced to the Trustee by such Person.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be authenticated
and delivered and outstanding under this Indenture is unlimited.
The Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
in an Officers' Certificate, or established in one or more indentures
supplemental hereto:
(a) the title of such Securities and the series in which such
Securities shall be included;
(b) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to Section 304, 308, 309, 905 or 1106,
upon surrender in part of any Registered Security for conversion or exchange
into Common Stock or other securities pursuant to its terms, or pursuant to the
terms of such Securities);
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(c) if such Securities are to be issuable as Registered Securities, as
Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the Bearer Securities are to be issuable with Coupons,
without Coupons or both, and any restrictions applicable to the offer, sale or
delivery of the Bearer Securities and the terms, if any, upon which Bearer
Securities may be exchanged for Registered Securities and vice versa;
(d) if any of such Securities are to be issuable in global form, when
any of such Securities are to be issuable in global form and (i) whether such
Securities are to be issued in temporary or permanent global form or both, (ii)
whether beneficial owners of interests in any such Global Security may exchange
such interests for Securities of the same series and of like tenor and of any
authorized form and denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in Section 308, and
(iii) the name of the Depository with respect to any Global Security;
(e) if any of such Securities are to be issuable as Bearer Securities
or in global form, the date as of which any such Bearer Security or Global
Security shall be dated (if other than the date of original issuance of the
first of such Securities to be issued);
(f) if any of such Securities are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer Security in
global form payable in respect of an Interest Payment Date therefor prior to the
exchange, if any, of such temporary Bearer Security for definitive Securities
shall be paid to any clearing organization with respect to the portion of such
temporary Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date;
(g) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the principal of such Securities is
payable;
(h) the rate or rates (which may be fixed or variable) at which such
Securities shall bear interest, if any, or the method or methods, if any, by
which such rate or rates are to be determined, the date or dates, if any, from
which such interest shall accrue or the method or methods, if any, by which such
date or dates are to be determined, the Interest Payment Dates, if any, on which
such interest shall be payable and the Regular Record Date, if any, for the
interest payable on Registered Securities on any Interest Payment Date, whether
and under what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of giving
such notice, and the basis upon which interest shall be calculated if other than
that of a 360-day year composed of twelve 30-day months;
(i) if in addition to or other than the Borough of Manhattan, the City
of New York, the place or places where the principal of, premium, if any, and
interest on or any Additional Amounts with respect to such Securities shall be
payable, any of such Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, any of such Securities may
be surrendered for conversion or exchange and notices or demands to or upon the
Company in respect of such Securities and this Indenture may be served, the
extent to which, or the manner in which, any interest payment on or Additional
Amounts with respect to a Global Security on an Interest Payment Date will be
paid and the manner in which any principal of or premium, if any, on any Global
Security will be paid;
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(j) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the date or dates on which, the period or periods
within which, the price or prices at which and the other terms and conditions
upon which such Securities may be redeemed, in whole or in part, at the option
of the Company;
(k) if the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the option
of any Holder thereof and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities shall be redeemed or purchased, in whole
or in part, pursuant to such obligation, and any provisions for the remarketing
of such Securities so redeemed or purchased;
(l) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of $1,000
and any integral multiple thereof, and the denominations in which any of such
Securities that are Bearer Securities shall be issuable if other than the
denomination of $5,000;
(m) whether the Securities of the series will be convertible into
shares of Common Stock and/or exchangeable for other securities, and if so, the
terms and conditions upon which such Securities will be so convertible or
exchangeable, including the conversion or exchange price, the conversion or
exchange date(s) or period(s), provisions as to whether conversion or exchange
will be at the option of the Holder or the Company, the events requiring
adjustment of the conversion or exchange price and provisions affecting
conversion or exchange in the event of redemption of the Securities of any
series and any deletions from or modifications or additions to this Indenture to
permit or to facilitate the issuance of such convertible or exchangeable
Securities or the administration thereof;
(n) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion is to be determined;
(o) if other than Dollars, the Foreign Currency in which payment of the
principal of, premium, if any, and interest on or any Additional Amounts with
respect to any of such Securities and related Coupons shall be payable;
(p) if the principal of, premium, if any, or interest on or any
Additional Amounts with respect to any of such Securities are to be payable, at
the election of the Company or a Holder thereof or otherwise, in Dollars or in a
Foreign Currency other than that in which such Securities are stated to be
payable, the date or dates on which, the period or periods within which, and the
other terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such Securities or
any of them are to be paid pursuant to such election, and any deletions from or
modifications of or additions to the terms of this Indenture to provide for or
to facilitate the issuance of Securities denominated or payable, at the election
of the Company or a Holder thereof or otherwise, in a Foreign Currency;
(q) whether the amount of payments of principal of, premium, if any, or
interest on or any Additional Amounts with respect to such Securities may be
determined with reference to an index, formula or other method or methods (which
index, formula or method or methods may be based, without limitation, on one or
more Currencies, commodities, equity indices or other indices), and, if so, the
terms
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and conditions upon which and the manner in which such amounts shall be
determined and paid or payable;
(r) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to any of such Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(s) if either or both of Section 402(b) relating to defeasance or
Section 402(c) relating to covenant defeasance shall not be applicable to the
Securities of such series, or any covenants in addition to those specified in
Section 402(c) relating to the Securities of such series which shall be subject
to covenant defeasance, and any deletions from, or modifications or additions
to, the provisions of Article Four in respect of the Securities of such series;
(t) if any of such Securities are to be issuable upon the exercise of
warrants, and the time, manner and place for such Securities to be authenticated
and delivered;
(u) if any of such Securities are to be issuable in global form and are
to be issuable in definitive form (whether upon original issue or upon exchange
of a temporary Security) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and terms of such
certificates, documents or conditions;
(v) if the Securities are Original Issue Discount Securities, the dates
within 15 days of which lists of Holders of Securities are to be furnished to
the Trustee pursuant to Trust Indenture Act Section 312(a);
(w) if there is more than one Trustee, the identity of the Trustee and,
if not the Trustee, the identity of each Registrar, Paying Agent or
Authenticating Agent with respect to such Securities; and
(x) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
may otherwise be provided by the Company in or pursuant to the Board Resolution
and set forth in the Officers' Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. The terms of the
Securities of any series may provide, without limitation, that the Securities
shall be authenticated and delivered by the Trustee on original issue from time
to time upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental indenture.
All Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
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SECTION 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, premium, if any, and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
SECTION 303. EXECUTION, AUTHENTICATION AND DELIVERY.
(a) The Securities and the related Coupons, if any, shall be executed
in the name and on behalf of the Company by its Chief Executive Officer, its
Chief Financial Officer, its President or one of its Vice President, its
Treasurer or one of its Assistant Treasurers, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and the
related Coupons, if any, may be manual or facsimile.
(b) Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
(c) No Security or any related Coupon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a Certificate of Authentication duly executed by the
Trustee by manual signature of a Responsible Officer, and such Certificate of
Authentication upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and made available for
delivery hereunder. Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
(d) The Trustee shall authenticate and deliver Securities of a series,
and any related Coupon, for original issue, at one time or from time to time in
accordance with the Company Order referred to below, upon receipt by the Trustee
of:
(i) a Board Resolution as required by Section 301;
(ii) a Company Order requesting the authentication and
delivery of such Securities;
(iii) an Officers' Certificate or a supplemental indenture
setting forth the form of such Securities and, except as set forth in a
Board Resolution, establishing the terms thereof;
(iv) such Securities, executed on behalf of the Company in
accordance with clause (a) of this Section;
(v) an Opinion of Counsel to the effect that:
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(1) the form or forms of such Securities have been
duly authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(2) such Securities, when authenticated and delivered
by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will have been duly issued under this Indenture
and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their terms,
subject, as to enforcement to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(3) that any supplemental indenture referred to in
clause (iii) above has been duly authorized, executed and
delivered by the Company and is a valid instrument legally
binding upon the Company, enforceable in accordance with its
terms, subject as to enforcement to laws relating to or
affecting creditors' rights, including without limitation,
bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(4) that all consents, approvals and orders of any
commission, governmental authority or agency required in
connection with the issuance and delivery of such Securities
have been obtained; and
(vi) an Officers' Certificate certifying that no Default or
Event of Default has occurred and is continuing.
(e) The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent. Each Authenticating
Agent shall be acceptable to the Company and, except as provided in or pursuant
to this Indenture, shall at all times be a corporation that would be permitted
by the Trust Indenture Act to act as trustee under an indenture qualified under
the Trust Indenture Act, is authorized under applicable law and by its charter
to act as an Authenticating Agent and has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at
least $50,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section. An
Authenticating Agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent. The Trustee shall pay any
Authenticating Agent appointed by the Trustee reasonable compensation for its
services and the Trustee shall be reimbursed for such payment by the Company
pursuant to Section 607. The provisions set forth in Sections 602, 603 and 607
shall be applicable to any Authenticating Agent.
(f) If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such opinion
and certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
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certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
(g) Except as permitted by Section 309 or 310, the Trustee shall not
authenticate and deliver any Bearer Security unless all related Coupons then
matured have been detached and canceled.
SECTION 304. TEMPORARY SECURITIES.
The Company may execute temporary Securities, and upon the Company's
Order, the Trustee shall authenticate and make such temporary Securities
available for delivery. Temporary Securities shall be printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
in the same series and principal amount and of like tenor as the definitive
Securities in lieu of which they are issued, in bearer form with one or more
Coupons or without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the Officers of the Company executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, after the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities of the same series upon surrender of the temporary
Securities at the Office or Agency of the Company designated for such purpose
pursuant to Section 305, without charge to the Holders thereof. Upon surrender
for cancellation of any one or more temporary Securities (accompanied by any
unmatured Coupons), the Company shall execute a like principal amount of
definitive Securities of the same series of authorized denominations, and the
Trustee, upon receipt of a Company Order, shall authenticate and make such
Securities available for delivery in exchange therefor; provided, however, that
no definitive Bearer Security, except as provided in or pursuant to this
Indenture, shall be delivered in exchange for a temporary Registered Security;
and provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 305. REGISTRAR AND PAYING AND CONVERSION AGENTS.
The Company shall maintain or cause to be maintained, in the City of
New York, an Office or Agency where the Securities may be presented for
registration of transfer or for exchange ("Registrar"), a Paying Agent at whose
office the Securities may be presented or surrendered for payment, a Conversion
Agent at whose Office the Securities may be presented and surrendered in the
event of a conversion or exchange ("Conversion Agent"), and an Office or Agency
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Registrar shall keep a register (the
"Register") of the Securities and of their transfer and exchange. The Company
may have one or more co-Registrars, one or more additional Paying Agents and one
or more Conversion Agents, and may rescind the designation of any Paying Agent
or Conversion Agent, provided, however, that the Company shall at all times
maintain a Paying Agent in each Place of Payment. The term Registrar includes
any additional registrar, the term Paying Agent includes any additional paying
agent and the term Conversion Agent includes any additional conversion agent.
Unless otherwise specified in or pursuant to this Indenture or the
Securities, the Trustee shall be the initial Registrar, Paying Agent and
Conversion Agent for each series of Securities. The Company
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shall have the right to remove and replace from time to time the Registrar for
any series of Securities; provided that no such removal or replacement shall be
effective until a successor Registrar with respect to such series of Securities
shall have been appointed by the Company and shall have accepted such
appointment by the Company. In the event that the Trustee shall not be or shall
cease to be Registrar with respect to a series of Securities, it shall have the
right to examine the Register for such series at all reasonable times. There
shall be only one Register for each series of Securities.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-Registrar (if not the Company or
the Trustee or an Affiliate of the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall give
prompt written notice to the Trustee and to the Holders of any change of
location of such Office or Agency. If at any time the Company shall fail to
maintain or cause to be maintained 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 address of the
Trustee set forth Section 101. The Company shall notify the Trustee of the name
and address of any such agent. If the Company fails to maintain a Registrar,
Paying Agent , Conversion Agent or agent for service of notices or demands, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 607. The Company or any Affiliate of the Company
may act as Paying Agent, Conversion Agent, Registrar or co-Registrar or agent
for service of notices and demands.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee and to the Holders of any
such designation or rescission and of any change in location of any such other
Office or Agency.
SECTION 306. PAYING AGENT TO HOLD MONEY IN TRUST.
Except as otherwise provided herein, prior to or on each due date of
the principal of and premium, if any, and interest on or Additional Amounts with
respect to, any Security, the Company shall deposit with the Paying Agent a sum
of money sufficient to pay such principal, premium, if any, and interest on or
Additional Amounts so becoming due. The Company shall require each Paying Agent
(other than the Trustee or the Company) to agree in writing that such Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal of and premium, if any and
interest on or Additional Amounts with respect to the Securities and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying Agent shall,
upon the request of the Trustee, pay to the Trustee all money so held in trust
and account for any money disbursed by it. The Company at any time may require
the Paying Agent to pay all money held by it to the Trustee and to account for
any money disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If the Company, a
Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund.
SECTION 307. LIST OF HOLDERS.
The Trustee shall preserve in as current a form as is reasonably
practicable, the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall cause to be
furnished to the Trustee on or before the Record Date for each Interest Payment
Date
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and at such other times as the Trustee may request in writing, within five
Business Days of such request, a list, in such form as the Trustee may
reasonably require of the names and addresses of Holders.
SECTION 308. TRANSFER AND EXCHANGE.
With respect to Registered Securities of each series, when Securities
are presented to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Securities of the
same series of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if its reasonable requirements for
such transactions are met. To permit registrations of transfer and exchanges,
the Company shall execute and the Trustee shall authenticate Securities, all at
the Registrar's request.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder or his attorney duly
authorized in writing.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (a) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (b)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such Coupon
is so surrendered with such Bearer Security, such Coupon shall be returned to
the Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
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Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
The Company shall not require payment of a service charge for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of the transfer
or exchange of Securities from the Holder requesting such transfer or exchange
(other than any exchange of a temporary Security for a definitive Security not
involving any change in ownership).
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) any Security for a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such mailing, (b)
any Security selected, called or being called for redemption, except, in the
case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (c) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture.
SECTION 309. REPLACEMENT SECURITIES.
If (a) any mutilated Security or a Security with a mutilated Coupon is
surrendered to the Company or the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such Security
and/or Coupon or indemnity as may reasonably be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute in exchange for any such mutilated Security and/or Coupon, or in lieu of
any such destroyed, lost or stolen Security, a new Security with any related
Coupon of the same series and of like tenor and principal amount bearing a
number not contemporaneously outstanding and the Trustee shall authenticate and
make such new Security available for delivery.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be redeemed by the
Company pursuant to Article Eleven, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, and any related
Coupon, as the case may be; provided, however, that payment of principal of,
premium, if any, or interest on or any Additional Amounts with respect to any
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
related Coupons.
Upon the issuance of any new Securities, with its Coupons, if any,
under this Section, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the reasonable fees and expenses of
the Trustee) in connection therewith.
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Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company (whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable) and shall
be entitled to all benefits of this Indenture equally and ratably with any and
all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 310. BOOK-ENTRY SYSTEM.
In order to utilize a book-entry-only system for all or any portion of
the Securities of any series, all or a portion of the Securities of any series
may be issued in the form of one or more fully registered Securities of the same
series as a Global Security, which Global Security shall be registered in the
name of the Depository selected by the Company or in the name of such
Depository's nominee. Each Global Security shall be delivered by the Trustee to
the Depository or pursuant to the Depository's instruction and shall bear a
legend substantially to the following effect: "This Security may be transferred,
in whole but not in part, only to another nominee of the Depository or to a
successor Depository or to a nominee of such successor Depository."
Notwithstanding any other provision of this Section or of Section 308,
a Global Security may be transferred in whole but not in part and in the manner
provided in Section 308, only by a nominee of the Depository for such series, or
by the Depository or any such nominee of a successor Depository for such series
selected or approved by the Company or to a nominee of such successor
Depository.
If (a) at any time the Depository for Global Securities of any series
of Securities notifies the Company that it is unwilling or unable to continue as
Depository for such Global Securities or if at any time the Depository for such
Global Securities shall no longer be a clearing agency registered or in good
standing under the Exchange Act or other applicable statute or regulation, and a
successor Depository for such Global Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, (b) the Company determines in its sole
discretion, that the Securities of any series shall no longer be represented by
one or more Global Securities and delivers to the Trustee an Officers'
Certificate evidencing such determination or (c) a Default or an Event of
Default occurs and is continuing, then the provisions of this Section shall no
longer apply to the Securities of such series. In such event, the Company will
execute and the Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and deliver Securities of
such series and of like tenor in definitive registered form, in authorized
denominations, and in aggregate principal amount equal to the principal amount
of the Global Securities of such series in exchange for such Global Securities.
Upon the exchange of Global Securities for such Securities in definitive
registered form without Coupons, in authorized denominations, the Global
Securities shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for Global Securities pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
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<PAGE> 34
Except as provided above or as provided in any supplemental indenture,
owners of beneficial interests in a Global Security shall not be entitled to
receive physical delivery of Securities in definitive form and will not be
considered the Holders thereof for any purpose under this Indenture.
Members of or participants in the Depository shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the
Depository, and such Depository or its nominee, as the case may be, may be
treated by the Company, the Trustee, and any agent of the Company or the Trustee
as the Holder of such Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its members or participants, the
operation of customary practices governing exercise of the rights of a Holder of
any Security, including without limitation the granting of proxies or other
authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under this Indenture.
SECTION 311. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS; RIGHTS TO
INTEREST AND CERTAIN ADDITIONAL AMOUNTS PRESERVED.
Unless otherwise specified pursuant to Section 301(h), interest on the
Securities shall be computed on the basis of a 360-day year composed of twelve
30-day months, and for any period shorter than 30 days, interest will be
computed on the basis of the actual number of days elapsed in such period.
Unless otherwise provided with respect to a series of Securities,
(a) the principal and Redemption Price of and interest on each Security
shall be payable in such Currency established for such Security;
(b) the principal and Redemption Price of any Security and interest
payable on the Stated Maturity Date (if other than an Interest Payment Date) or
Redemption Date shall be payable upon surrender of such Security at the Office
or Agency of any Paying Agent therefor; and
(c) interest on any Security shall be paid on each Interest Payment
Date therefor to the Holder thereof at the close of business on the Record Date
therefor, such interest to be payable by check mailed to the address of the
Person entitled thereto as such address appears on the Register; provided
however, that (i) at the written request of any Holder of at least $10,000,000
aggregate principal amount of Securities received by the Registrar not later
than the Regular Record Date for such Interest Payment Date, interest accrued on
such Securities will be payable by wire transfer within the continental United
States in immediately available funds to the bank account number of such Holder
specified in such request and entered on the Register by the Registrar and (ii)
payments made in respect of Global Securities shall be made in immediately
available funds to the Depositary.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or (ii) below:
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(i) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security shall be
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 Registered
Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such
money when so deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon, the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of a Registered Security at his address as it
appears in the Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the
expense of the Company cause a similar notice to be published at least
once in an Authorized Newspaper of general circulation in the Borough
of Manhattan, the City of New York, but such publication shall not be a
condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such
Registered Security shall be registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (ii). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered
Security after the close of business at such Office or Agency on any
Special Record Date and before the opening of business at such Office
or Agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Defaulted Interest and Defaulted Interest shall not be
payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee and the Paying Agent of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by
the Paying Agent.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Register or by transfer to
an account maintained by the payee with a bank located in the United States.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
If any convertible Registered Security of any series is converted after
any Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Registered Security with respect to which the Stated
Maturity is prior to such Interest Payment Date), interest that is due on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Registered Security is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Registered Security that is converted, interest
shall not be payable if the Regular Record Date is after the date of conversion
of such Registered Security.
SECTION 312. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Register as the owner of such Registered Security for the purpose of receiving
payment of principal of, premium, if any, and (subject to Sections 308 and 311)
interest on and any Additional Amounts with respect to such Registered Security
and for all other purposes whatsoever, whether or not any payment with respect
to such Registered Security shall be overdue, and neither the Company, nor the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Company, nor the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such Global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. 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 of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 313. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be canceled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in
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any manner whatsoever, and all Securities so delivered shall be canceled
promptly by the Trustee. The Company may not reissue or issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be destroyed by the
Trustee, and the Trustee shall deliver a certificate of destruction to the
Company.
SECTION 314. COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS.
If any Bearer Securities are to be issued in any series of Securities,
the Company will use reasonable efforts to provide for arrangements and
procedures designed pursuant to then applicable laws and regulations, if any, to
ensure that such Bearer Securities are sold or resold, exchanged, transferred
and paid only in compliance with such laws and regulations and without adverse
consequences to the Company, the Holders and the Trustee.
SECTION 315. RETURN OF MONEYS HELD BY THE TRUSTEE AND PAYING AGENT UNCLAIMED FOR
TWO YEARS.
Any moneys deposited with or paid to the Trustee or any Paying Agent
for the payment of the principal of and premium, if any, or interest on or
Additional Amounts with respect to the Securities, and any related Coupons, of
any series and not applied but remaining unclaimed for two years after the date
when such principal, premium, if any, interest or Additional Amount shall have
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be repaid to the
Company by the Trustee or such Paying Agent, and the Holders of such Securities
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect as a general unsecured
creditor, and all liability of the Trustee or any Paying Agent with respect to
such moneys shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
each Place of Payment for such series or to be mailed to Holders of Registered
Securities of such series, or both, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing nor shall it be later than two years
after such principal and premium, if any, or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such money then
remaining will be repaid to the Company.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities and
any related Coupons as specified in such Company Order, and the Trustee, on
receipt of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
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(a) either
(i) all Securities of such series, and all related
Coupons, if any, theretofore authenticated and delivered
(other than (1) Coupons relating to Bearer Securities of such
series surrendered in exchange for Registered Securities of
such series and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 308,
(2) Securities and Coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 309, (3) Coupons relating to Securities
of such series called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1104, and (4) Securities and Coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 315)) have been
delivered to the Trustee for cancellation; or
(ii) all Securities of such series and, in the case
of (1) or (2) below, any related Coupons thereto, not
theretofore delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Stated Maturity within one year, or
(3) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose, money in Currency in which
such Securities are payable in an amount sufficient to pay and
discharge the entire indebtedness on such Securities and any
related Coupons not theretofore delivered to the Trustee for
cancellation, including the principal of, premium, if any, and
interest on, and any Additional Amounts with respect to such
Securities and any related Coupons, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Maturity or Redemption Date thereof, as the
case may be; and
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any related Coupons.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture, with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 607 and, if money shall have been deposited with the
Trustee pursuant to clause (a)(ii) of this Section, the following obligations of
the
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Company and the Trustee with respect to the Securities of such series, shall
survive: (i) the rights of registration of transfer and exchange of Securities
of such series, (ii) the replacement of apparently mutilated, defaced,
destroyed, lost or stolen Securities of such series, (iii) the rights of the
Holders of the Securities, and any related Coupons, of such series to receive
payments of the principal of and premium, if any, interest on or any Additional
Amounts with respect to the Securities of such series, (iv) the rights of the
Holders of the Securities of such series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, (v)
the obligation of the Company to maintain an Office or Agency for payments on
and registration of transfer of the Securities of such series, (vi) the rights,
obligations and immunities of the Trustee hereunder, and (vii) any rights to
convert or exchange the Securities of such series into Common Stock or other
securities or rights in accordance with their terms.
SECTION 402. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES.
(a) Unless, pursuant to Section 301, either or both of (i) defeasance
of the Securities of or within a series under clause (b) of this Section shall
not be applicable with respect to the Securities of such series or (ii) covenant
defeasance of the Securities of or within a series under clause (c) of this
Section shall not be applicable with respect to the Securities of such series,
then such provisions, together with the other provisions of this Section (with
such modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities and any
related Coupons, and the Company may at its option by Board Resolution, at any
time, with respect to such Securities and any related Coupons, elect to have
clause (b) or clause (c) be applied to such Outstanding Securities and any
related Coupons upon compliance with the conditions set forth below in this
Section.
(b) Upon the Company's exercise of the above option applicable to this
clause (b) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any related Coupons on the date the conditions
set forth in clause (d) of this Section are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by such
Outstanding Securities and any related Coupons, which shall thereafter be deemed
to be "Outstanding" only for the purposes of clause (e) of this Section and the
other Sections of this Indenture referred to in clauses (i) and (ii) below, and
to have satisfied all of its other obligations under such Securities and any
related Coupons and this Indenture insofar as such Securities and any related
Coupons are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Outstanding Securities and any related Coupons to
receive, solely from the trust fund described in clause (d) of this Section and
as more fully set forth in such clause, payments in respect of the principal of,
premium, if any, and interest on, and Additional Amounts with respect to, such
Securities and any related Coupons when such payments are due, and any rights of
such Holder to convert or exchange such Securities into Common Stock or other
securities, (ii) the obligations of the Company and the Trustee with respect to
such Securities under Sections 308, 309, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1004 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to clause (d)(i) below), and with respect to any
rights to convert or exchange such Securities into Common Stock or other
securities, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Section. The Company may exercise its option
under this clause (b) notwithstanding the prior exercise of its option under
clause (c) of this Section with respect to such Securities and any related
Coupons.
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(c) Upon the Company's exercise of the above option applicable to this
clause (c) with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 1007 and 1008, and, to the
extent specified pursuant to Section 301, under any covenants described in a
supplemental indenture pursuant to Section 901(b) applicable to such series of
such Securities with respect to such Outstanding Securities and any related
Coupons on and after the date the conditions set forth in clause (d) of this
Section are satisfied (hereinafter, "covenant defeasance"), and such Securities
and any related Coupons shall thereafter be deemed to be not "Outstanding" for
the purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with any such covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any related Coupons, the Company may omit to comply
with, and shall have no liability in respect of, any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under clause (d) or (h) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and related
Coupons shall be unaffected thereby.
(d) The following shall be the conditions to application of clause (b)
or (c) of this Section to any Outstanding Securities of or within a series and
any related Coupons:
(i) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Section applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
such Securities and any related Coupons, (1) an amount in Dollars or in
such Foreign Currency in which such Securities and any related Coupons
are then specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and related Coupons
(determined on the basis of the Currency in which such Securities and
related Coupons are then specified as payable at Stated Maturity) which
through the scheduled payment of principal of and interest on in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of, and premium, if any and
interest on such Securities and any related Coupons, money in an
amount, or (3) a combination thereof, in any case, in an amount,
sufficient, without consideration of any reinvestment of such principal
and interest, in the opinion of a nationally recognized firm of
Independent Public Accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (y) the principal of, and premium, if any, and interest on
such Outstanding Securities and any related Coupons on the Stated
Maturity of such principal or installment of principal or interest and
(z) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any related Coupons on
the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any related
Coupons.
(ii) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
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(iii) No Default or Event of Default with respect to such
Securities and any related Coupons shall have occurred and be
continuing on the date of such deposit and, with respect to defeasance
only, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(iv) In the case of an election under clause (b) of this
Section, the Company shall have delivered to the Trustee a reasoned
Opinion of Counsel stating that (1) the Company has received from the
Internal Revenue Service a letter ruling, or there has been published
by the Internal Revenue Service a Revenue Ruling, or (2) since the date
of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any related Coupons 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 and at the same times as would have been
the case if such defeasance had not occurred.
(v) In the case of an election under clause (c) of this
Section, the Company shall have delivered to the Trustee a reasoned
Opinion of Counsel to the effect that the Holders of such Outstanding
Securities and any related Coupons 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.
(vi) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance under
clause (b) or (c) of this Section (as the case may be) have been
complied with.
(vii) Notwithstanding any other provisions of this Section
(d), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 301.
(e) Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in clause (d)(i) has been made, (i)
the Holder of a Security in respect of which such deposit was made is entitled
to, and does, elect pursuant to Section 301 or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
clause (d)(i) has been made in respect of such Security, or (ii) a Conversion
Event occurs in respect of the Foreign Currency in which the deposit pursuant to
clause (d)(i) has been made, the Indebtedness represented by such Security and
any related Coupons shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of and premium, if any, and
interest on, and Additional Amounts with respect to, such Security as the same
becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the Currency in which such Security
becomes payable as a result of such election or Conversion Event based on (x) in
the case of payments made pursuant to clause (i) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each
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payment date, or (y) with respect to a Conversion Event, the applicable market
exchange rate for such Foreign Currency in effect (as nearly as feasible) at the
time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any related
Coupons.
Anything in this Section to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Order any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (d) of this Section which, in the opinion of a
nationally recognized firm of Independent Public Accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section.
SECTION 403. APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 315, all money and Government Obligations
deposited with the Trustee pursuant to Section 401 or 402 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, any
related Coupons and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of, and
premium, if any, and interest on and any Additional Amounts for whose payment
such money has or Government Obligations have been deposited with or received by
the Trustee; but such money and Government Obligations need not be segregated
from other funds except to the extent required by law.
ARTICLE FIVE
DEFAULTS AND REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(a) default in the payment of any interest on or any Additional Amounts
payable with respect to any Security of such series when such interest becomes
or such Additional Amounts become due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or
premium, if any, on any Security of such series when it becomes due, whether at
Maturity, upon any redemption, by declaration of acceleration of Maturity or
otherwise; or
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(c) default in the deposit of any sinking fund payment when and as due
by the terms of a Security of such series; or
(d) default in the performance or breach, of any covenant or agreement
of the Company in this Indenture or the Securities (other than a covenant or
agreement a default in the performance or the breach of which is elsewhere in
this Section specifically dealt with or which has been expressly included in
this Indenture solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(e) a court of competent jurisdiction enters:
(i) a decree or order for relief in respect of the Company in
an involuntary proceeding under any applicable Bankruptcy Law and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(ii) a decree or order adjudging the Company to be insolvent,
or approving a petition seeking reorganization, arrangement, adjustment
or composition of the Company and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a Custodian
of the Company or of any substantial part of the property of the
Company, or ordering the winding up or liquidation of the affairs of
the Company; or
(f) the Company pursuant to or within the meaning of any Bankruptcy
Law: (i) commences a voluntary case or proceeding; (ii) consents to the entry of
an order for relief against it in an involuntary case or proceeding; (iii) files
a petition or answer or consent seeking reorganization or relief or consents to
such filing or to the appointment of or taking possession by a Custodian of it
or for all or substantially all of its property, and such Custodian is not
discharged within 60 days; (iv) makes a general assignment for the benefit of
its creditors; or (v) admits in writing its inability to pay its debts generally
as they become due; or
(g) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
For the purpose of this Indenture, the term "Default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
SECTION 502. ACCELERATION.
If any Event of Default with respect to the Securities of any series
other than an Event of Default under clause (e) or (f) of Section 501 occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Securities of that series then outstanding may declare the
principal
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amount of, and any accrued interest on, (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof), and any
accrued interest on, all the Securities of that series due and payable
immediately. If an Event of Default specified in clause (e) or (f) of Section
501 occurs, the principal of, and any accrued interest on, all Securities shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders.
The foregoing paragraph, however, is subject to the condition that if,
at any time after the principal of the Securities of that series shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Securities of that series and
the principal of and premium, if any, on and any Additional Amounts with respect
to all Securities of that series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon overdue
installments of interest and Additional Amounts, at the rate accruing on the
Securities of that series to the date of such payment or deposit) and the amount
payable to the Trustee under Section 607, and any and all Defaults under the
Indenture, other than the nonpayment of principal of and interest on Securities
of that series which shall not have become due by their terms, shall have been
remedied or waived as provided in Section 504, then and in every such case, the
Holders of at least a majority in aggregate principal amount of the Securities
of that series then outstanding, by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences with
respect to that series of Securities; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon.
SECTION 503. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may, in
its own name or as trustee of an express trust, institute, pursue and prosecute
any proceeding, including without limitation, any action at law or suit in
equity or other judicial or administrative proceeding to collect the payment of
principal of or premium, if any, or interest on or Additional Amounts with
respect to the Securities of the series that is in default, to enforce the
performance of any provision of the Securities of that series or this Indenture
or to obtain any other available remedy.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of the Securities in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair such right or remedy or
constitute a waiver of, or acquiescence in, such Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 504. WAIVER OF PAST DEFAULTS.
If a Default or Event of Default with respect to a series of Securities
has occurred and is continuing, the Holders of at least a majority in aggregate
principal amount of the Securities of that series at the time Outstanding, by
notice to the Trustee and the Company, may waive an existing Default or Event of
Default and its consequences except a Default or Event of Default in the payment
of the principal of or premium, if any, or interest on or Additional Amounts
with respect to any Security of that series (unless such Event of Default has
been cured and a sum sufficient to pay all matured installments
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of interest (and premium, if any) and principal due otherwise than by
acceleration has been deposited with the Trustee) or a default in respect of a
covenant or provision which under this Indenture cannot be modified or amended
without the consent of the holder of each Outstanding Security of that series.
When a Default or Event of Default is waived, it is deemed cured and shall cease
to exist, but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any consequent right.
SECTION 505. CONTROL BY HOLDERS.
The Holders of at least a majority in aggregate principal amount of the
Securities of a series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or of exercising any trust
or power conferred on the Trustee, in respect of such series of Securities.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Holders or may involve the Trustee in
personal liability. The Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, including withholding
notice to the Holders of the Securities of continuing default (except in the
payment of the principal of (other than any mandatory sinking fund payment) or
premium, if any, or interest on or Additional Amounts with respect to any
Securities) if the Trustee considers it in the interest of the Holders of the
Securities to do so.
SECTION 506. LIMITATION ON SUITS.
Except as provided in Section 511, no Holder of Securities of any
series or any related Coupons may pursue any remedy with respect to this
Indenture or the Securities unless:
(a) the Holders of Securities of such series give to the Trustee
written notice stating that an Event of Default with respect to the
corresponding Securities of such series has occurred and is continuing;
(b) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series make a written request to the Trustee to
pursue a remedy;
(c) the Holders of Securities of such series provide to the Trustee
reasonable security and indemnity against any loss, liability or expense
satisfactory to the Trustee;
(d) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security and indemnity; and
(e) during such 60 day period, the Holders of at least a majority in
aggregate principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request,
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders, or to obtain or seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all such Holders.
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SECTION 507. COLLECTION SUITS BY THE TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days, or
(b) default is made in the payment of the principal of or premium, if
any, on any Security at the Maturity or Redemption Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of such Security and the Holder of any related Coupons, the whole amount
then due and payable on such Security and related Coupons for principal,
premium, if any, and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal and premium, if
any, and on any overdue interest, at the rate or rates prescribed therefor in
such Security and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Security and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Security, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related Coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or such
Securities or in aid of the exercise of any power granted herein, or to enforce
any other remedy available under this Indenture or by law.
SECTION 508. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company upon the Securities or the Principal
Property of the Company, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal of
and premium, if any, and interest on and Additional Amounts with respect to the
Securities 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
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities and Coupons
allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or Coupon in any such proceeding.
SECTION 509. PRIORITIES.
If the Trustee collects any money pursuant to this Article Five, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 607;
SECOND: to Holders of Securities in respect of which or for the
benefit of which such money has been collected for amounts due
and unpaid on such Securities for the principal thereof,
premium, if any, or interest thereon and Additional Amounts
with respect to, ratably, without preference or priority of
any kind, according to such amounts due and payable on such
Securities and related Coupons; and
THIRD: the balance, if any, to the Company.
Except as otherwise set forth in the Securities, the Trustee may fix a
Record Date and payment date for any payment to Holders pursuant to this
Section.
SECTION 510. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder of Securities pursuant to Section 511 or a suit
by Holders of Securities of more than 10% in aggregate principal amount of the
Outstanding Securities of any series.
SECTION 511. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right which is absolute and unconditional to receive
payment of the principal of, premium, if any, and interest on such Security on
the respective due dates expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to convert or exchange such Security in
accordance with its
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terms, if applicable, and to institute suit for the enforcement of such payment
or conversion or exchange, and such right shall not be impaired without the
consent of such Holder.
ARTICLE SIX
THE TRUSTEE
SECTION 601. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) If an Event of Default occurs and is continuing with respect to the
Securities of any series, the Trustee shall exercise the rights and powers
vested in it by or pursuant to this Indenture with respect to that series and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any series, (i) the Trustee need perform only those duties
with respect to that series that are specifically set forth in this Indenture,
in such Securities or the Trust Indenture Act and no others; and (ii) in the
absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture (but
shall not be required to confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 601(c) does not limit the effect of Section
601(b);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 505.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to Section 601(a), (b), (c) and (e) and Section 602.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives security and indemnity reasonably satisfactory to it
against any loss, liability or expense (including reasonable counsel fees).
(f) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that the repayment of
such
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funds or liability is not reasonably assured to it under the terms of this
Indenture or indemnity reasonably satisfactory to the Trustee against such risk
or liability is not reasonably assured to it.
SECTION 602. RIGHTS OF THE TRUSTEE.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(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,
coupon or other paper or document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Order (in each case, other than delivery of
any Security, together with any related Coupons, to the Trustee for
authentication and delivery pursuant to Section 303 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
Coupons pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
coupon or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours and upon
reasonable notice, the books, records and premises of the Company, personally or
by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities. The Trustee shall not be accountable for the
Company's use of the proceeds from the Securities, and the Trustee shall not be
responsible for any statement in this Indenture or the Securities or any report
or certificate issued by the Company hereunder or any registration statement
relating to the Securities (other than the Trustee's Certificate of
Authentication and the Trustee's Statement of Eligibility on Form T- 1), or the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 604. NOTICE OF DEFAULTS.
If a Default occurs and is continuing with respect to the Securities of
any series and if it is known to the Trustee, the Trustee shall mail to each
Holder of a Security of that series notice of the Default within 90 days after
it becomes known to the Trustee unless such Default shall have been cured or
waived. Except in the case of a Default described in Section 501(a) or (b), the
Trustee may withhold such notice if and so long as a committee of Responsible
Officers in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities of that series. The Trustee shall not
be charged with knowledge of any Default unless a Responsible Officer assigned
to the Corporate Trust Department of the Trustee shall have actual knowledge of
the Default. The second sentence of this Section shall be in lieu of the proviso
to Trust Indenture Act Section 315(b). Said proviso is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Registrar
or any other Person that may be an agent of the Trustee or Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Registrar or such other
Person.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND INDEMNITY.
The Company covenants and agrees:
(a) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses, and advances of its agents and counsel; provided that,
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prior to any Default or Event of Default, the Trustee shall only have one
outside counsel), including all reasonable expenses and advances incurred or
made by the Trustee in connection with any Default or Event of Default or any
membership on any creditors' committee, except any such expense or advance as
may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee, its officers, employees, directors and
shareholders, for, and to hold it harmless against, any and all loss, liability
or expense, incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
Before, after or during an Event of Default with respect to the
Securities of a series, the Trustee shall have a claim and lien prior to the
Securities of that series as to all property and funds held by it hereunder for
any amount owing it for its fees and expenses or any predecessor Trustee
pursuant to this Section, except with respect to funds held by the Trustee or
any Paying Agent in trust for the payment of principal of or premium, if any, or
interest on or any Additional Amounts with respect to Securities or any related
Coupons pursuant to Section 306, Section 401 or Section 402.
The Company's payment and indemnity obligations pursuant to this
Section shall survive the discharge of this Indenture. When the Trustee renders
services or incurs expenses after the occurrence of a Default specified in
Section 501, the compensation for services and expenses are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 608. ELIGIBILITY; DISQUALIFICATION.
(a) The Trustee shall at all times satisfy the requirements of the
Trust Indenture Act Sections 310(a)(1) and 310(a)(2). The Trustee (or any
Affiliate thereof which has unconditionally guaranteed the obligations of the
Trustee hereunder) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recently published annual report of
condition. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) The Trustee shall comply with the Trust Indenture Act Section
310(b). In determining whether the Trustee has conflicting interests as defined
in the Trust Indenture Act Section 310(b)(1), the provisions contained in the
proviso to the Trust Indenture Act Section 310(b)(1) and the Trustee's Statement
of Eligibility on Form T-1 shall be deemed incorporated herein.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 610 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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(c) If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, it shall, within 90 days after ascertaining it has
such conflicting interest, either eliminate the conflicting interest or resign
with respect to the Securities of that series in the manner set forth in this
Section.
(d) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of at least a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(e) If at any time:
(i) the Trustee shall fail to comply with clause (c) of this
Section after written request therefor by the Company or by any Holder
of a Security who has been a bona fide Holder of a Security for at
least six months, or
(ii) the Trustee shall cease to be eligible under Section
608(a) and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent, or a receiver of Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(1) the Company by a Board Resolution may remove the Trustee with
respect to all Securities, or (2) subject to Section 510, any Holder of
a Security who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 610. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of at least a majority in principal amount of
the Outstanding Securities of such series, notice of such appointment shall be
delivered to the Company and the retiring Trustee. The successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 610, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner required by
Section 610, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
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(g) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and deeds of the Trustee with respect to the Securities of that or those
series which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (iii) 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 as co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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SECTION 611. SUCCESSOR TRUSTEE BY MERGER.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
ARTICLE SEVEN
REPORTS BY TRUSTEE AND COMPANY
SECTION 701. REPORTS BY TRUSTEE.
Within 60 days after each September 1, beginning with the September 1
next following the date of this Indenture, the Trustee shall mail to each
Holder, and such other holders that have submitted their names to the Trustee
for such purpose, a brief report dated as of such September 1 in accordance with
and to the extent required under Section 313 of the Trust Indenture Act
A copy of each report at the time of its mailing to Holders shall be
filed with the Company, the SEC and any securities exchange on which the
Securities are listed. The Company agrees to promptly notify the Trustee
whenever the Securities become listed on any securities exchange and of any
listing thereof.
SECTION 702. REPORTS BY COMPANY.
The Company shall file with the Trustee, within 15 days after it files
them with the SEC, copies of its annual report and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company
is not subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Trustee such information,
documents and reports (or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) which are specified in Section 13 or
15(d) of the Exchange Act. The Company shall also comply with the provisions of
Section 314(a) of the Trust Indenture Act.
Upon request of the Trustee, the Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
ARTICLE EIGHT
SUCCESSOR CORPORATION
SECTION 801. WHEN THE COMPANY MAY MERGE, ETC.
The Company may not consolidate with or merge with or into, or sell,
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to, any Person, and no Person shall consolidate with or merge into
the Company or
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convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to the Company, unless:
(a) the Person formed by or surviving such consolidation or merger or
to which such sale, conveyance, transfer or lease shall have been made (the
"Successor") if other than the Company (i) is organized and existing under the
laws of the United States of America or any state thereof or the District of
Columbia, and (ii) shall expressly assume by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and any Coupons and this
Indenture;
(b) immediately prior to and after giving effect to such transaction no
Default or Event of Default shall have occurred and be continuing; and
(c) the Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and such supplemental indenture comply with this
Indenture.
The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the obligor
on the Securities and Coupons with the same effect as if the Successor had been
named as the Company herein but, in the case of a sale, conveyance, transfer or
lease of all or substantially all of the assets of the Company, the predecessor
Company will not be released from its obligation to pay the principal of and
premium, if any, and interest on and Additional Amounts with respect to the
Securities and related Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
From time to time, when authorized by a resolution of the Board of
Directors, the Company and the Trustee, without notice to or the consent of any
Holders of Securities or Coupons, may amend or supplement this Indenture:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power herein
conferred upon the Company; provided, however, that in respect of any such
additional covenant, or restriction or condition on the Company, 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
(c) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture); or
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(d) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or premium, if any, or
interest on or any Additional Amounts with respect to Bearer Securities, to
permit Bearer Securities to be exchanged for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely affect
the interests of the Holders of Securities of any series or any related Coupons
in any material respect; or
(e) to change or eliminate any of the provisions of this Indenture,
provided, that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series and any
related Coupons as permitted by Sections 201 and 301, or in lieu of any such
supplemental indenture, the Company may provide the Trustee with an Officers'
Certificate with respect to the form or terms of such Securities or Coupons; or
(h) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
the related Coupons, if any, 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; or
(i) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or inconsistent
with any other provision herein or in any supplemental indenture, or to make any
other provisions with respect to matters or questions arising under this
Indenture, which shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding or any related Coupons in any material
respect; or
(j) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities as herein set forth; or
(k) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided that
any such action shall not adversely affect the interests of any Holder of a
Security of such series and any related Coupons or any other Security or Coupon
in any material respect; or
(l) to maintain qualification of this Indenture under the Trust
Indenture Act; or
(m) to make provisions with respect to conversion or exchange rights of
Holders of Securities of any series.
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 that may be
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necessary and desirable and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder; but the Trustee shall not be
obligated to enter into such supplemental indenture if such supplemental
indenture adversely affects the Trustee's own rights, duties or immunities under
this Indenture, in which case the Trustee may in its discretion enter into such
supplemental indenture.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture in any manner not
permitted by Section 901 or may waive future compliance by the Company with any
provisions of this Indenture with the consent of the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of each
series affected thereby then outstanding. Such an amendment or waiver may not,
without the consent of each Holder of any Securities affected thereby:
(a) change the Stated Maturity of the principal of, or premium, if any,
or interest on, or any Additional Amounts with respect to, any Security, or
reduce the principal amount of or the rate (or modify the manner of the
calculation of such rate) of interest on or any Additional Amounts with respect
to or any premium payable upon the redemption of any Security, or change any
obligation of the Company to pay Additional Amounts pursuant to Section 1004
(except as contemplated by Section 801 and permitted by Section 901(a)), or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 508, change the redemption provisions or change the Place of
Payment, Currency in which the principal of, premium, if any, or interest on, or
any Additional Amounts with respect to any Security is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or change any provision with respect to the conversion or
exchange of such Securities, or
(b) reduce the percentage of the principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or
(c) modify any of the provisions of this Section or Section 504 except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder of a Security or Coupon
with respect to changes in the references to "the Trustee" and concomitant
changes in this Section, in accordance with the requirements of Section 901(h).
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture, which shall have been included expressly and
solely for the benefit of one or more particular series of Securities and the
related Coupons, or which modifies the rights of the Holders of Securities of
such series and any of such Coupons with respect to such covenant or other
provision, shall be deemed not to adversely affect the rights under this
Indenture of the Holders of Securities of any other series or Coupons of any
other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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If certain Holders agree to defer or waive certain obligations of the
Company hereunder with respect to Securities held by them, such deferral or
waiver shall not affect the rights of any other Holder to receive the payment or
performance required hereunder in a timely manner.
After an amendment or waiver under this Section 902 becomes effective,
the Company shall mail to each Holder a notice briefly describing the amendment
or waiver. Any failure of the Company to mail such notices, or any defect
therein, shall not, however, in any way impair or affect the validity of such
amendment or waiver.
SECTION 903. COMPLIANCE WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article Nine
shall comply with the Trust Indenture Act.
SECTION 904. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, waiver or other action by Holders becomes
effective, a consent, waiver or any other action by a Holder of a Security
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Security or portion of the Security that evidences the same obligation as
the consenting Holder's Security, even if notation of the consent, waiver or
action is not made on such Security. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Security or
portion of the Security if the Trustee receives the notice of revocation before
the consent of the requisite aggregate principal amount of such Securities then
Outstanding has been obtained and not revoked. After an amendment, waiver or
action becomes effective, it shall bind every Holder of the Securities of the
related series, except as provided in Section 902.
The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Persons entitled to consent to any amendment or
waiver. If a Record Date is fixed, then, notwithstanding the first two sentences
of the immediately preceding paragraph, only Holders of Securities on such
Record Date or their duly designated proxies, and only those Persons, shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be such after
such Record Date. No such consent shall be valid or effective for more than 90
days after such Record Date.
SECTION 905. NOTATION ON OR EXCHANGE OF SECURITIES.
Securities of the related series authenticated and made available for
delivery after the execution of any supplemental indenture pursuant to this
Article Nine may, and shall, if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so modified to
conform, in the opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and made available for delivery by the Trustee in exchange for
Outstanding Securities.
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SECTION 906. EXECUTION OF SUPPLEMENTAL INDENTURES.
The Trustee shall execute any supplemental indenture authorized
pursuant to this Article Nine if the supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, execute it. In executing such supplemental
indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and Opinion of Counsel
stating that such supplemental indenture is authorized or permitted by this
Indenture.
SECTION 907. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes and
every Holder of Securities of the related series theretofore or thereafter
authenticated and made available for delivery hereunder shall be bound thereby.
SECTION 908. SUBORDINATION UNIMPAIRED.
This Indenture may not be amended to alter the subordination of any of
the Outstanding Securities without the written consent of each holder of Senior
Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest on and any Additional Amounts with respect to the Securities
of such series in accordance with the terms of the Securities, any related
Coupons and this Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest due on Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the Coupons for such interest as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any related Coupons may be presented and surrendered for payment;
provided, however, that if the Securities of such series are listed on The Stock
Exchange of the United
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Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company shall maintain a Paying Agent for the Securities
of that series in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Company will give prompt written notice to the
Trustee and the Holders 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 in respect of any series of Securities or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands related to the Securities of that series may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any related Coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of that series pursuant to Section 1004) at the place
specified for the purpose with respect to such Securities as provided in or
pursuant to this Indenture, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, if amounts owing with respect to any Bearer Securities shall
be payable in Dollars, payment of principal of, premium, if any, or interest on
and any Additional Amounts with respect to any such Security may be made at the
Corporate Trust Office of the Trustee or any Office or Agency designated by the
Company in the Borough of Manhattan, the City of New York, if (but only if)
payment of the full amount of such principal, premium, interest or Additional
Amounts at all offices outside the United States maintained for such purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (a) are denominated
in a Foreign Currency or (b) may be payable in a Foreign Currency, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, premium, if any, or interest on or Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
or premium, if any, interest or Additional Amounts so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, premium, if any, or interest on or any Additional Amounts with respect to
any Securities of such series, deposit with any Paying Agent a sum (in the
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Currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
or premium, if any, interest or Additional Amounts so becoming due, such sum to
be held in trust for the benefit of the Persons entitled thereto, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
SECTION 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
related Coupon the Additional Amounts as provided in or pursuant to this
Indenture or such Securities. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of or premium, if any, or interest on,
or in respect of, any Security of any series or any related Coupon or the net
proceeds received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established hereby or pursuant hereto to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal, premium, if any, or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company shall furnish to the Trustee and the principal Paying
Agent or Paying Agents, if other than the Trustee, an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and premium, if any, or interest on the Securities of
such series shall be made to Holders of Securities of such series or the related
Coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
such series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and its rights (charter and statutory) and franchises; provided,
however, that the foregoing shall not obligate the Company to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to any Holder.
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SECTION 1006. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any of its
Subsidiaries to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
SECTION 1007. RESTRICTIONS ON SECURED DEBT.
(a) The Company will not, nor will it permit any Restricted Subsidiary
to, issue, assume or guarantee any debt for money borrowed (hereinafter in this
Article Ten referred to as "Debt"), secured by a mortgage, security interest,
pledge, lien or other encumbrance (mortgages, security interests, pledges, liens
and other encumbrances being hereinafter called "lien" or "liens") upon any
Principal Property or upon any shares of stock or indebtedness of any Restricted
Subsidiary (whether such Principal Property, shares of stock or indebtedness are
now owned or hereafter acquired) without in any such case effectively providing
concurrently with the issuance, assumption or guaranty of any such Debt that the
Securities (together with, if the Company shall so determine, any other
indebtedness of or guaranty by the Company or such Restricted Subsidiary ranking
equally with the Securities and then existing or thereafter created) shall be
secured equally and ratably with such Debt; provided, however, that the
foregoing restrictions shall not apply to Debt secured by:
(i) liens on property, shares of stock or indebtedness of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(ii) liens on property existing at the time of acquisition of
such property by the Company or a Restricted Subsidiary, or liens to
secure the payment of all or any part of the purchase price of such
property upon the acquisition of such property by the Company or a
Restricted Subsidiary prior to, at the time of, or within one year
after the later of the acquisition, the completion of construction
(including any improvements on an existing property) or the
commencement of commercial operation of such property, which Debt is
incurred for the purpose of financing all or any part of the purchase
price thereof or construction or improvements thereon; provided,
however, that in the case of any such acquisition, construction or
improvement the lien shall not apply to any property theretofore owned
by the Company or a Restricted Subsidiary, other than, in the case of
any such construction or improvement, any theretofore unimproved real
improvement, on which the property so constructed, or the improvement
is located;
(iii) liens securing Debt of a Restricted Subsidiary owing to
the Company or to another Restricted Subsidiary;
(iv) liens on property of a corporation existing at the time
such corporation is merged into or consolidated with the Company or a
Restricted Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary;
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(v) any lien, paramount to all other liens, upon moneys
advanced or paid pursuant to any contracts for production, research or
development with or for the government, directly or indirectly,
providing for advance, partial or progress payments on such contracts,
or upon any material or supplies in connection with the performance of
such contracts to secure such payments to the government; and liens or
other evidences of interest in favor of the government, paramount to
all other liens, on any equipment, tools, machinery, land or buildings
hereafter constructed, installed or purchased by the Company or a
Restricted Subsidiary primarily for the purpose of manufacturing or
producing any product, or performing any research or development work
directly or indirectly, for the government to secure indebtedness
incurred and owing to the government for the construction, installation
or purchase of such equipment, tools, machinery, land or buildings
(including without limitation liens incurred in connection with
pollution control, industrial revenue or similar financings). For the
purpose of this subsection (v), "government" shall mean the government
of the United States and any department or agency thereof or the
government of any State or any instrumentality thereof;
(vi) liens existing at the date of this Indenture;
(vii) liens on particular property (or any proceeds of the
sale thereof) to secure all or any part of the cost of exploration,
drilling, mining or development thereof (including construction of
facilities for field processing of minerals) intended to obtain or
materially increase the production and sale or other disposition of
oil, gas, coal, uranium, copper or other minerals therefrom, or any
indebtedness created, issued, assumed or guaranteed to provide funds
for any or all such purposes; or
(viii) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any lien
referred to in the foregoing clauses (i) to (vii), inclusive; provided,
however, that the principal amount of Debt secured thereby shall not
exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which
secured the lien so extended, renewed or replaced (plus improvements on
such property).
(b) Notwithstanding the foregoing provisions of this Section, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by a lien which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
Debt of the Company and its Restricted Subsidiaries secured by a lien which (if
originally issued, assumed or guaranteed at such time) would otherwise be
subject to the foregoing restrictions (not including Debt permitted to be
secured under clauses (i) through (viii) above), does not at the time exceed 5%
of the consolidated stockholders' equity of the Company, as shown on the audited
consolidated financial statements of the Company as of the end of the fiscal
year preceding the date of determination.
(c) For the purposes of this Section the following types of
transactions shall not be deemed to create Debt secured by a lien: the sale or
other transfer of (i) oil, gas, coal, uranium, copper or other minerals in place
for a period of time until, or in an amount such that, the purchaser will
realize therefrom a specified amount of money (however determined) or a
specified amount of such minerals, or (ii) any other interest in property of the
character commonly referred to as a "production payment."
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SECTION 1008. RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, nor will it permit any Restricted Subsidiary to,
enter into any arrangement with any person providing for the leasing by the
Company or any Restricted Subsidiary of any Principal Property of the Company or
any Restricted Subsidiary (whether such Principal Property is now owned or
hereafter acquired) (except for temporary leases for a term of not more than
three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries), which property has been or is to
be sold or transferred by the Company or such Restricted Subsidiary to such
person, unless (a) the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 1007, to issue, assume or guarantee Debt
secured by a lien upon such property at least equal in amount to the
Attributable Debt (defined below) in respect of such arrangement without equally
and ratably securing the Securities; provided, however, that from and after the
date on which such arrangement becomes effective the Attributable Debt in
respect of such arrangement shall be deemed for all purposes under Section 1007
and this Section to be Debt subject to the provisions of Section 1007; or (b)
the Company shall apply an amount in cash equal to the Attributable Debt in
respect of such arrangement to the retirement (other than any mandatory
retirement or by way of payment at maturity), within 90 days of the effective
date of any such arrangement, of Debt of the Company or any Restricted
Subsidiary (other than Debt owned by the Company or any Restricted Subsidiary
and other than Debt of the Company which is subordinated to the Securities)
which by its terms matures at or is extendible or renewable at the option of the
obligor to a date more than 12 months after the creation of such Debt.
For the purposes of this Section the term "Attributable Debt" shall
mean the present value (discounted at the rate of 1% per annum over the weighted
average yield to maturity of the Outstanding Securities hereunder, such average
being weighted by the principal amount of the Securities of each series or, in
the case of Original Issue Discount Securities, such amount to be determined as
provided in the definition of "Outstanding") of the obligation of a lessee for
rental payments (excluding from such rental payments, however, amounts payable
with respect to income and property taxes, insurance, maintenance, and other
similar charges and contingent rents, such as those based on sales) during the
remaining term of any lease (including any period for which such lease has been
extended).
SECTION 1009. COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each of the Company's fiscal years, an Officers' Certificate stating
whether or not the signer knows of any Default or Event of Default. Such
certificate shall contain a certification from the principal executive officer,
principal financial officer or principal accounting officer of the Company as to
his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section, such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Indenture. If such Officer does know of such a
Default or Event of Default, the Officers' Certificate shall describe any such
Default or Event of Default, and its status. Such Officers' Certificate need not
comply with Sections 102 and 103.
(b) The Company shall deliver to the Trustee any information reasonably
requested by the Trustee in connection with the compliance by the Trustee or the
Company with the Trust Indenture Act.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. REDEMPTION: NOTICE TO TRUSTEE.
(a) The Company may redeem the Securities of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 301.
(b) If any or all of the Securities are to be redeemed pursuant to this
Section, the Company shall deliver to the Trustee no more than 60 and no less
than 45 days prior to the Redemption Date a Company Order specifying the series
and principal amount of Securities to be redeemed and the Redemption Date and
Redemption Price for such Securities. Such Company Order shall be accompanied by
a Board Resolution authorizing such redemption.
SECTION 1102. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the outstanding Securities of a series are to be
redeemed at any time, the Trustee shall select the Securities of such series to
be redeemed by lot or by any other method the Trustee considers fair and
appropriate. The Trustee shall make the selection at least 30 but not more than
60 days before the Redemption Date from outstanding Securities of such series
not previously called for redemption. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 1103. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before the Redemption Date,
the Trustee, in the Company's name and at the Company's expense, shall mail or
cause to be mailed a notice of redemption by first-class mail, postage prepaid,
to each Holder of Securities to be redeemed at such Holder's last address as it
appears in the Register.
The notice of redemption shall identify the Securities to be redeemed,
the provision of the Securities or this Indenture pursuant to which the
Securities called for redemption are being redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that payment of the Redemption Price of Securities called for
redemption will be made only upon surrender of such Securities to the Paying
Agent;
(e) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification and principal amounts of the particular
Securities to be redeemed and that, on and after the Redemption Date, upon
surrender of such Securities, a new Security or Securities of the same series
and of like tenor and in a principal amount equal to the unredeemed portion
thereof will be issued;
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(f) that, unless the Company defaults in paying the Redemption Price of
the Securities called for redemption, including accrued interest thereon to the
Redemption Date, interest will cease to accrue on such Securities on and after
the Redemption Date;
(g) the place or places where such Securities, together (in the case of
Bearer Securities) with all related Coupons, if any, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price and
any accrued interest and Additional Amounts pertaining thereto;
(h) that the redemption is for a sinking fund, if such is the case;
(i) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
Coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing Coupon or Coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished;
(j) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 308 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made;
(k) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or other securities, the conversion or exchange
price or rate, the date or dates on which or the period or periods during which
the right to convert or exchange the principal of the Securities of such series
to be redeemed will commence or terminate and the place or places where such
Securities may be surrendered for conversion or exchange; and
(l) the CUSIP number or the Euroclear or the Cedel Bank, S.A. reference
numbers of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
Any notice of redemption given in the manner provided herein shall be
conclusively presumed to have been given, whether or not such notice is actually
received. Failure to mail any notice or defect in the mailed notice or the
mailing thereof in respect of any Security shall not affect the validity of the
redemption of any other Security.
SECTION 1104. EFFECT OF NOTICE OF REDEMPTION.
After notice of redemption has been given, Securities called for
redemption shall become due and payable on the Redemption Date at the Redemption
Price and from and after the Redemption Date (unless the Company shall default
in the payment of the Redemption Price and accrued interest), such Securities
shall cease to bear interest. Upon the later of the Redemption Date and the date
such Securities are surrendered to the Paying Agent, such Securities shall be
paid at the Redemption Price, plus accrued interest to the Redemption Date,
provided that installments of interest on Securities with an Interest Payment
Date which is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, registered as such at the close of business on the Regular
Record Dates therefor according to their terms and provisions.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing Coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that any interest
or Additional Amounts represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an Office or Agency for such
Security located outside of the United States except as otherwise provided in
Section 1002.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or an Affiliate is the Paying Agent, shall
segregate and hold in trust or cause such Affiliate to segregate and hold in
trust) money sufficient to pay the Redemption Price of, and accrued interest on,
all Securities to be redeemed on that Redemption Date. The Paying Agent shall
return to the Company any money in excess of the amount sufficient to pay the
Redemption Price of, and accrued interest on and Additional Amounts with respect
to, all Securities to be redeemed and any interest accrued on the amount
deposited pursuant to this Section.
SECTION 1106. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security of the same series and in a
principal amount equal to the unredeemed portion of such Security.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
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SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (a) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons, and (b) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, provided that
such series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities of any
series in lieu of cash payments pursuant to this Section, the principal amount
of Securities of such series to be redeemed in order to exhaust the aforesaid
cash payment shall be less than $100,000, the Trustee need not call Securities
of such series for redemption, except upon a Company Order, and such cash
payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment on Securities of such series, provided, however,
that the Trustee or such Paying Agent shall at the request of the Company from
time to time pay over and deliver to the Company any cash payment so being held
by the Trustee or such Paying Agent upon delivery by the Company to the Trustee
of Securities of that series purchased by the Company having an unpaid principal
amount equal to the cash payment requested to be released to the Company.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1102 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1103. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1104 and 1106.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article Thirteen to make, give or
take any request, demand, authorization, direction,
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notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, the City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 20
days after receipt of such request (whichever is required by Section 106) or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, the City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (a) of
this Section.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities of
such series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote at least a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote such percentage in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may
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be further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1302(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of at least a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture or any
supplemental indenture expressly provides may be made, given or taken by the
Holders of a specified percentage in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related Coupons,
whether or not such Holders were present or represented at the meeting.
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote at least a majority in principal amount of
the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security
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challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote at least a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. AGREEMENT TO SUBORDINATE.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of a Security or Coupon, by its acceptance thereof,
likewise covenants and agrees, that the payment of the principal of and interest
on, each and all of the Securities and any Coupons is hereby expressly
subordinated, to the extent and in the manner hereinafter in this Article
Fourteen set forth, in right of payment to the prior payment in full of all
Senior Indebtedness.
SECTION 1402. RIGHTS OF SENIOR INDEBTEDNESS IN THE EVENT OF INSOLVENCY, ETC., OF
THE COMPANY.
(a) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith, relative to the Company or to its creditors, as such, or
to its property, and in the event of any proceedings for voluntary
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liquidation, dissolution or other winding up of the Company, whether or not
involving insolvency or bankruptcy, and in the event of any execution sale, then
the holders of Senior Indebtedness shall be entitled to receive payment in full
of principal thereof and interest due thereon (including without limitation,
except to the extent, if any, prohibited by mandatory provisions of law,
post-petition interest in any such proceedings) of all Senior Indebtedness
before the Holders are entitled to receive any payment on account of the
principal of or interest on the indebtedness evidenced by the Securities or of
the Coupons, and to that end the holders of Senior Indebtedness shall be
entitled to receive for application in payment thereof any payment or
distribution of any kind or character, whether in cash or property or
securities, which may be payable or deliverable in connection with any such
proceedings or sale in respect of the principal of or interest on the Securities
or Coupons other than securities of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in this Article Fourteen with respect to the Securities or
Coupons, to the payment of all indebtedness of the nature of Senior
Indebtedness, provided that the rights of the holders of the Senior Indebtedness
are not altered by such reorganization or readjustment.
(b) In the event and during the continuation of any default in payment
of any Senior Indebtedness or if any event of default, as therein defined, shall
exist under any Senior Indebtedness or any agreement pursuant to which any
Senior Indebtedness is issued, no payment of the principal of or interest on the
Securities or Coupons shall be made and the Company covenants that it will, upon
ascertaining any such default or event of default, provide written notice to the
Trustee of such default or event of default.
(c) In the event that the Securities of any series are declared due and
payable before their expressed maturity because of the occurrence of an Event of
Default (under circumstances when the provisions of subsection (a) of this
Section shall not be applicable), the holders of all Senior Indebtedness shall
be entitled to receive payment in full of such Senior Indebtedness before such
Holders are entitled to receive any payment on account of the principal of or
interest on the Securities or Coupons.
(d) No holder of Senior Indebtedness shall be prejudiced in his right
to enforce subordination of the Securities or Coupons by any act or failure to
act on the part of the Company.
SECTION 1403. PAYMENT OVER OF PROCEEDS RECEIVED ON SECURITIES.
In the event that, notwithstanding the provisions of Section 1402, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article Fourteen with
respect to the Securities or Coupons, to the payment of all indebtedness of the
nature of Senior Indebtedness, provided that the rights of the holders of the
Senior Indebtedness are not altered by such reorganization or readjustment)
shall be received by the Holders or by the Trustee for their benefit in
connection with any proceedings or sale referred to in subsection (a) of Section
1402 before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each,
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for application to the payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
From and after the payment in full of all Senior Indebtedness, the
Holders (together with the holders of any other indebtedness of the Company
which is subordinate in right of payment to the payment in full of all Senior
Indebtedness, which is not subordinate in right of payment to the Securities or
Coupons and which by its terms grants such right of subrogation to the holder
thereof) shall be subrogated to the rights of the holders of Senior Indebtedness
to receive payments or distributions of assets or securities of the Company
applicable to the Senior Indebtedness until the Securities and any Coupons shall
be paid in full, and, for the purposes of such subrogation, no such payments or
distributions to the holders of Senior Indebtedness of assets or securities,
which otherwise would have been payable or distributable to Holders, shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment by the Company to or on
account of the Senior Indebtedness, it being understood that the provisions of
this Article Fourteen are and are intended solely for the purpose of defining
the relative rights of the Holders, on the one hand, and the holders of the
Senior Indebtedness, on the other hand, and nothing contained in this Article
Fourteen or elsewhere in this Indenture or in the Securities or Coupons is
intended to or shall impair as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders, the obligation of the Company,
which is unconditional and absolute, to pay to the Holders the principal of and
interest on the Securities or Coupons as and when the same shall become due and
payable in accordance with their terms, or to affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
Holder of any Security or Coupon from exercising all remedies otherwise
permitted by applicable law upon Default under this Indenture subject to the
rights of the holders of Senior Indebtedness, under Section 1402, to receive
cash, property or securities of the Company otherwise payable or deliverable to
the holders of the Securities or Coupons.
Upon any distribution or payment in connection with any proceedings or
sale referred to in subsection (a) of Section 1402, the Trustee, subject as
between the Trustee and the Holders to the provisions of Sections 601 and 602
hereof, shall be entitled to rely upon a certificate of the liquidating trustee
or agent or other person making any distribution or payment to the Trustee for
the purpose of ascertaining the holders of Senior Indebtedness entitled to
participate in such payment or distribution, the amount of such Senior
Indebtedness or the amount payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Fourteen. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Section 1403, 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, as to the extent to which such person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such person under this Section 1403, 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 Trustee, however, 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 in good faith pay over or distribute to Holders or the Company or
any other person moneys or assets to which any holders of Senior Indebtedness
shall be entitled by virtue of Article Fourteen of this Indenture or otherwise.
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SECTION 1404. PAYMENTS TO HOLDERS.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture, or in any of the Securities or in any Coupon, shall prevent at any
time, (a) the Company from making payments at any time of principal of or
interest on the Securities or Coupons, except under the conditions described in
Section 1402 or during the pendency of any proceedings or sale therein referred
to, provided, however, that, except as provided in Article Four, payments of
principal of or interest on the Securities or Coupons shall only be made by the
Company not more than three Business Days before the due dates for such payments
or (b) the application by the Trustee of any moneys deposited with it hereunder
to the payment of or on account of the principal of or interest on the
Securities or Coupons, if the Trustee does not have written notice in accordance
with Section 1406 of any event prohibiting the making of such deposit by the
Company or the making of such payment.
SECTION 1405. HOLDERS OF SECURITIES AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES.
Each Holder by his acceptance of a Security or Coupon authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination as provided in this
Article Fourteen and appoints the Trustee as attorney-in-fact for any and all
such purposes, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or otherwise) tending towards liquidation of the business and assets of the
Company, the immediate filing of a claim for the unpaid balance of such Holder's
Securities or Coupons in the form required in said proceedings and cause said
claim to be approved.
SECTION 1406. NOTICE TO TRUSTEE.
Notwithstanding the provisions of this Article Fourteen or any other
provisions of this Indenture, the Trustee shall not be charged with the
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to the Trustee, unless and until the Trustee shall have
received written notice thereof from the Company or from the holder or the
representative of any class of Senior Indebtedness; provided, however, that if
at least two Business Days prior to the date upon which by the terms hereof any
such monies may become payable for any purpose (including, without limitation,
the payment of either the cash amount payable at maturity or upon redemption or
interest on any Security or Coupon) the Trustee shall not have received with
respect to such monies the notice provided for in this Section 1406, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any notice
to the contrary which may be received by it on or after the second Business Day
prior to such date.
SECTION 1407. TRUSTEE MAY HOLD SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in this
Article Fourteen 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.
67
<PAGE> 75
SECTION 1408. APPLICABILITY OF ARTICLE FOURTEEN TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall be
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article Fourteen shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Fourteen in place of the Trustee.
SECTION 1409. FUNDS HELD IN TRUST PURSUANT TO ARTICLE FOUR.
The provisions of this Article Fourteen shall not apply to funds the
Company has deposited or caused to be deposited as trust funds pursuant to the
provisions of Sections 401 or 402.
-----------------
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68
<PAGE> 76
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested all as of the day and year first above written.
HERCULES INCORPORATED
By_____________________________________
Title:
Attest:
_____________________________________
Title:
(SEAL)
THE CHASE MANHATTAN BANK
as Trustee
By_____________________________________
Title:
Attest:
_____________________________________
Title:
(SEAL)
69
<PAGE> 77
STATE OF DELAWARE )
: ss.:
COUNTY OF NEWCASTLE )
On the ____ day of _________, ____, before me personally came
___________________ , to me known, who, being by me duly sworn, did depose and
say that he is _______________________ of Hercules Incorporated, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
_____________________________________
Notary Public
(SEAL)
70
<PAGE> 78
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF PHILADELPHIA )
On the ________ day of _________, ____, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is a ______________________ of The Chase Manhattan Bank, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
_____________________________________
Notary Public
(SEAL)
71
<PAGE> 1
HERCULES INCORPORATED, AS ISSUER
AND
THE CHASE MANHATTAN BANK, AS TRUSTEE
INDENTURE
DATED AS OF _________ __, _______
JUNIOR SUBORDINATED DEBENTURES
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.....................................................................................1
Section 1.02 Other Definitions...............................................................................6
Section 1.03 Incorporation by Reference of TIA...............................................................6
Section 1.04 Rules of Construction...........................................................................7
Section 1.05 Acts of Holders and Holders of Preferred Securities.............................................7
ARTICLE 2
THE DEBENTURES
Section 2.01 Amount Unlimited; Issuable in Series............................................................8
Section 2.02 Payment of Principal and Interest..............................................................10
Section 2.03 Execution, Authentication and Delivery.........................................................12
Section 2.04 Registrar and Paying and Conversion Agents.....................................................14
Section 2.05 Paying Agent to Hold Money in Trust............................................................15
Section 2.06 Debentureholder Lists..........................................................................15
Section 2.07 Transfer and Exchange..........................................................................15
Section 2.08 Replacement Debentures.........................................................................16
Section 2.09 Outstanding Debentures; Determinations of Holders' Action......................................16
Section 2.10 Temporary Debentures...........................................................................17
Section 2.11 Book-Entry System..............................................................................17
Section 2.12 Cancellation...................................................................................19
ARTICLE 3
REDEMPTION
Section 3.01 Redemption: Notice to Trustee..................................................................19
Section 3.02 Selection of Debentures to be Redeemed.........................................................19
Section 3.03 Notice of Redemption...........................................................................19
Section 3.04 Effect of Notice of Redemption.................................................................20
Section 3.05 Deposit of Redemption Price....................................................................21
Section 3.06 Debentures Redeemed in Part....................................................................21
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.....................................................21
Section 4.02 Prohibition Against Dividends..................................................................22
Section 4.03 SEC Reports....................................................................................22
Section 4.04 Compliance Certificates........................................................................23
Section 4.05 Further Instruments and Acts...................................................................23
Section 4.06 Payment of Expenses of each Trust..............................................................23
</TABLE>
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<TABLE>
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Section 4.07 Ownership of Common Securities.................................................................23
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01 When the Company May Merge.....................................................................24
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default..............................................................................24
Section 6.02 Acceleration...................................................................................26
Section 6.03 Other Remedies.................................................................................27
Section 6.04 Waiver of Past Defaults........................................................................27
Section 6.05 Control by Holders.............................................................................27
Section 6.06 Limitation on Suits............................................................................28
Section 6.07 Unconditional Right of Holders to Receive Principal, Premium and Interest......................28
Section 6.08 Direct Action Right of Holders of Trust Preferred Securities...................................29
Section 6.09 Collection Suits by the Trustee................................................................29
Section 6.10 Trustee May File Proofs of Claim...............................................................30
Section 6.11 Priorities.....................................................................................30
Section 6.12 Undertaking for Costs..........................................................................31
ARTICLE 7
THE TRUSTEE
Section 7.01 Duties and Responsibilities of the Trustee.....................................................31
Section 7.02 Rights of the Trustee..........................................................................32
Section 7.03 Not Responsible for Recitals or Issuances of Debentures........................................33
Section 7.04 Notice of Defaults.............................................................................33
Section 7.05 Reports by Trustee to Holders..................................................................33
Section 7.06 Compensation and Indemnity.....................................................................34
Section 7.07 Eligibility; Disqualification..................................................................34
Section 7.08 Resignation and Removal; Appointment of Successor..............................................35
Section 7.09 Acceptance of Appointment by Successor.........................................................36
Section 7.10 Successor Trustee by Merger....................................................................37
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 8.01 Satisfaction and Discharge of Indenture........................................................37
Section 8.02 Application by Trustee of Funds Deposited for Payment of Debentures............................38
Section 8.03 Repayment of Moneys Held by Paying Agent.......................................................39
Section 8.04 Return of Moneys Held by the Trustee and Paying Agent Unclaimed for Two
Years..........................................................................................39
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C>
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ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.............................................39
Section 9.02 Supplemental Indentures With Consent of Holders................................................40
Section 9.03 Compliance with Trust Indenture Act............................................................42
Section 9.04 Revocation and Effect of Consents, Waivers and Actions.........................................42
Section 9.05 Notation on or Exchange of Debentures..........................................................42
Section 9.06 Execution of Supplemental Indentures...........................................................42
Section 9.07 Effect of Supplemental Indentures..............................................................43
ARTICLE 10
SUBORDINATION
Section 10.01 Debentures Subordinated to Senior Indebtedness.................................................43
Section 10.02 Priority and Payment of Proceeds in Certain Events: Remedies Standstill........................43
Section 10.03 Payments which May Be Made Prior to Notice.....................................................44
Section 10.04 Rights of Holders of Senior Indebtedness Not to Be Impaired....................................44
Section 10.05 Trustee May Take Action to Effectuate Subordination............................................45
Section 10.06 Subrogation....................................................................................45
Section 10.07 Obligations of Company Unconditional; Reinstatement............................................45
Section 10.08 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice........................46
Section 10.09 Right of Trustee to Hold Senior Indebtedness...................................................46
ARTICLE 11
SINKING FUNDS
Section 11.01 Applicability of Article.......................................................................47
Section 11.02 Satisfaction of Sinking Fund Payments with Debentures..........................................47
Section 11.03 Redemption of Debentures for Sinking Fund......................................................47
ARTICLE 12
MEETINGS OF DEBENTUREHOLDERS
Section 12.01 Purposes for Which Meetings May Be Called......................................................48
Section 12.02 Call, Notice and Place of Meetings.............................................................48
Section 12.03 Persons Entitled to Vote at Meetings...........................................................48
Section 12.04 Quorum; Action.................................................................................49
Section 12.05 Determination of Voting Rights; Conduct and Adjournment of Meetings...........................49
Section 12.06 Counting Votes and Recording Action of Meetings................................................50
ARTICLE 13
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls...................................................................51
Section 13.02 Notices........................................................................................51
Section 13.03 Communication by Holders with Other Holders....................................................52
Section 13.04 Certificate and Opinion as to Conditions Precedent.............................................52
</TABLE>
iii
<PAGE> 5
<TABLE>
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Section 13.05 Statements Required in Certificate or Opinion..................................................52
Section 13.06 Severability Clause............................................................................53
Section 13.07 Rules by Trustee, Paying Agent and Registrar...................................................53
Section 13.08 Legal Holidays.................................................................................53
Section 13.09 Governing Law..................................................................................53
Section 13.10 No Recourse Against Others.....................................................................53
Section 13.11 Successors and Assigns.........................................................................53
Section 13.12 Counterparts...................................................................................53
Section 13.13 No Adverse Interpretation of Other Agreements..................................................54
Section 13.14 Table of Contents, Headings....................................................................54
Section 13.15 Holders of Preferred Securities as Third Party Beneficiaries...................................54
Section 13.16 Benefits of the Indenture......................................................................54
</TABLE>
iv
<PAGE> 6
Hercules Indenture
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
Trust Indenture Indenture
Act Section Section
Section 310(a)(1) 2.03; 7.07
(a)(2) 2.03; 7.07
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) Not Applicable
(b) 7.07; 7.08
(c) Not Applicable
Section 311(a) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 312(a) 2.06
(b) 13.03
(c) 13.03
Section 313(a) 7.05
(b)(1) Not Applicable
(b)(2) Not Applicable
(c) 7.05
(d) 7.05
Section 314(a) 4.03; 4.04
(b) Not Applicable
(c)(1) 2.03; 13.04; 13.05
(c)(2) 2.03; 13.04; 13.05
(c)(3) Not Applicable
(d) Not Applicable
(e) 13.05
(f) Not Applicable
Section 315(a) 7.01(b); 7.02
(b) 7.02; 7.04; 13.02
(c) 7.01(a); 7.02
(d) 7.01(c); 7.02
(e) 6.12
Section 316(a)(1)(A) 6.05
(a)(1)(B) 6.02; 6.04
(a)(2) Not Applicable
(a)(last sentence) 2.09
(b) 6.07
(c) 1.05
Section 317(a)(1) 6.09
(a)(2) 6.10
(b) 2.05
Section 318(a) 13.01
(b) Not Applicable
(c) 13.01
Note: This reconciliation and tie sheet shall not, for any purpose,
be deemed to be a part of the Indenture.
v
<PAGE> 7
INDENTURE, dated as of _________ __, ____ by and between Hercules
Incorporated, a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), and The Chase Manhattan Bank, a banking
corporation duly organized and existing under the laws of the State of New York,
as trustee (the "Trustee").
WHEREAS, the Company may from time to time create or establish one or
more statutory business trusts for the purpose of issuing undivided beneficial
interests in the assets thereof (the "Trust Securities") and using the proceeds
thereof to acquire the Company's Debentures (as hereinafter defined).
WHEREAS, all things necessary to make the Debentures, when duly issued
and executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid and binding
agreement of the Company, enforceable in accordance with its terms, have been
done.
NOW THEREFORE:
Each of the Company and the Trustee, intending to be legally bound
hereby, agrees as follows for the benefit of the other party and for the equal
and ratable benefit of the Holders (as hereinafter defined) of the securities
issued hereunder:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"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. When used with respect to any Person,
"control" means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Board of Directors" means either the Board of Directors of the Company
or the Finance Committee of such Board or any other committee of such Board duly
authorized to act generally or in any particular respect for the Company
hereunder.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or the Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee or (ii) a certificate signed by the
authorized officer or officers to whom the Board of Directors has delegated its
authority, and in each case, delivered to the Trustee.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in the City of New York or Wilmington, Delaware
are authorized or required by law, regulation or executive order to close.
<PAGE> 8
"Capital Lease Obligations" of a Person means any obligation which is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such Person prepared in accordance with GAAP.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
in (however designated) corporate stock or similar interests in other types of
entities.
"Company" means Hercules Incorporated, a Delaware corporation, or any
successor thereto.
"Company Order" means a written request or order signed in the name of
the Company by an Officer of the Company and delivered to the Trustee.
"Debentureholder" or "Holder" means a Person in whose name a Debenture
is registered on the Registrar's books.
"Debentures" shall mean any of the junior subordinated debentures of
any series issued, 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 pursuant to Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extension Period," with respect to any series of Debentures, means any
period during which the Company elects to extend the interest payment period on
such series of Debentures pursuant to Section 4.01(b); provided that an
Extension Period (or any extension thereof) must end on an Interest Payment Date
for such Debentures and may not extend beyond the Stated Maturity Date or the
Redemption Date of any Debenture of such series.
"GAAP" means generally accepted accounting principles 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.
"Guarantee" means each Guarantee Agreement executed by the Company with
respect to the Preferred Securities issued by any Trust pursuant to which the
Company irrevocably and unconditionally agrees to pay the Guarantee Payments (as
defined in such Guarantee Agreement) to the holders of such Preferred
Securities.
"Indebtedness" means, without duplication, (i) every obligation of the
Company for money borrowed; (ii) every obligation of the Company evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of the Company with respect to letters of
credit, banker's acceptances or similar facilities issued for the account of the
Company; (iv) every obligation of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
Capital Lease Obligation of the Company; (vi) all indebtedness of the Company,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, for claims in respect of derivative products, including
2
<PAGE> 9
interest rate, foreign exchange rate and commodity forward contracts, options
and swaps and similar arrangements; (vii) every obligation of the type referred
to in clauses (i) through (vi) of another Person and all dividends of another
Person the payment of which, in either case, the Company has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or otherwise; and
(viii) obligations of the type referred to in clauses (i) through (vii) of
another Person secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company); and all deferrals,
renewals, extensions and refundings of, and amendments, modifications and
supplements to, any of the foregoing obligations.
"Indebtedness Ranking on a Parity with the Debentures" means (i)
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, to the extent such Indebtedness
specifically by its terms ranks pari passu with and not prior to the Debentures
in the right of payment upon the happening of the dissolution, winding-up,
liquidation or reorganization of the Company and (ii) all other debt securities,
and guarantees in respect of those debt securities, issued to any other trust,
or a trustee of such trust, partnership or other entity affiliated with the
Company that is a financing vehicle of the Company (a "financing entity") in
connection with the issuance by such financing entity of equity securities or
other securities guaranteed by the Company pursuant to an instrument that ranks
pari passu with or junior in right of payment to the Guarantees. The securing of
any Indebtedness otherwise constituting Indebtedness Ranking on a Parity with
the Debentures shall not be deemed to prevent such Indebtedness from
constituting Indebtedness Ranking on a Parity with the Debentures.
"Indebtedness Ranking Junior to the Debentures" means any Indebtedness,
whether outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, to the extent such Indebtedness by its terms ranks
junior to and not pari passu with or prior to the Debentures (and any other
Indebtedness Ranking on a Parity with the Debentures) in right of payment upon
the happening of the dissolution, winding-up, liquidation or reorganization of
the Company. The securing of any Indebtedness otherwise constituting
Indebtedness Ranking Junior to the Debentures shall not be deemed to prevent
such Indebtedness from constituting Indebtedness Ranking Junior to the
Debentures.
"Indenture" means this indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Interest Payment Date," when used with respect to the Debentures of
any series, means the stated maturity of any installment of interest on the
Debentures of that series.
"Issue Date," with respect to a series of Debentures, means the date on
which the Debentures of such series are originally issued.
"Office" or "Agency," with respect to any Debentures, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Debentures pursuant to Section 2.04 or any other office or agency of the Company
maintained or designated for such Debentures pursuant to Section 2.04 or, to the
extent designated or required by Section 2.04 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officer" means, with respect to any corporation, any Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
such corporation.
3
<PAGE> 10
"Officers' Certificate" means a certificate signed by either Co-Chief
Executive Officer, the Chief Financial Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, that complies with the requirements of
Sections 13.04 and 13.05 and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of the Company, or any other counsel who shall be reasonably acceptable
to the Trustee and provided that the General Counsel and the Assistant General
Counsel of the Company shall be deemed to be reasonably acceptable to the
Trustee, containing the applicable information specified in Sections 13.04 and
13.05.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and premium, if any, and interest on the Debentures of any series
on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Predecessor Debentures" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and for purposes of this definition, any
Debenture authenticated and delivered under Section 2.08 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Debenture shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Debenture.
"Preferred Securities" means the preferred securities of a Trust,
representing undivided beneficial interests in the assets of such Trust.
"Record Date," with respect to any series of the Debentures, means the
Regular Record Date, the Special Record Date or any date set to determine the
Holders of Debentures of such series entitled to vote, consent, make a request
or exercise any other right associated with such Debentures.
"Redemption Date," with respect to the Debentures of any series to be
redeemed, means the date specified for the redemption thereof in accordance with
the terms thereof and pursuant to Article 3 of this Indenture.
"Redemption Price," with respect to the Debentures of any series to be
redeemed, means the price at which such Debenture is to be redeemed in
accordance with the terms thereof and pursuant to Article 3 of this Indenture.
"Regular Record Date," with respect to an Interest Payment Date for the
Debentures of a series, means the date specified for such Debentures for the
determination of Holders entitled to receive the payment of interest on such
Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee, means any
Senior Vice President, any Vice President, any Assistant Vice President, any
Trust Officer, or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
4
<PAGE> 11
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, amended.
"Security Exchange," when used with respect to the Debentures of any
series which are held as assets of a Trust pursuant to the Trust Agreement of
such Trust, means the distribution of the Debentures of such series by such
Trust to the holders of the Trust Securities of such Trust in exchange for such
Trust Securities upon certain events described in the applicable Trust Agreement
of such Trust.
"Senior Indebtedness" means all Indebtedness, whether outstanding on
the date of execution of this Indenture or thereafter created, assumed or
incurred, except Indebtedness Ranking on a Parity with the Debentures or
Indebtedness Ranking Junior to the Debentures.
A "series" of Debentures means all Debentures denoted as part of the
same series authorized by or pursuant to a particular Board Resolution or a
supplemental indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Debentures of any series means the date determined pursuant to Section 2.02.
"Stated Maturity Date," with respect to the Debentures of any series,
means the date specified for such Debentures as the date on which the principal
of such Debenture is due and payable.
"Subsidiary" means any corporation, association, partnership, trust,
limited liability company or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, trustees or the
governing individuals or body thereof is at the time owned or controlled,
directly or indirectly, by (i) the Company, (ii) the Company and one or more
Subsidiaries, or (iii) one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended and as in
effect on the date of this Indenture; provided, however, that if such Act is
amended after such date, TIA means, to the extent required by any such
amendment, such Act as so amended.
"Trust" means any statutory business trust created or established by
the Company to issue Trust Securities and to use the proceeds from the sale
thereof to purchase Debentures.
"Trust Agreement" means the Amended and Restated Trust Agreement for a
Trust, among the Company, as sponsor, The Chase Manhattan Bank, as Property
Trustee, the Delaware Trustee named therein and the Administrative Trustees
named therein, as the same may be amended and modified from time to time.
"Trust Securities" means the undivided beneficial interests in the
assets of a Trust.
"Trustee" means the Person named as "Trustee" in the first paragraph of
this Indenture, until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor, and if
at any time there is more than one such Person, "Trustee" as used with respect
to Debentures of any series shall mean the Trustee with respect to Debentures of
that series.
5
<PAGE> 12
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock of
which (other than directors' qualifying shares) is owned by the Company or
another Wholly Owned Subsidiary.
SECTION 1.02 OTHER DEFINITIONS.
Term Defined in Section
"Act"............................................. 1.05
"Bankruptcy Law".................................. 6.01
"Conversion Agent"................................ 2.04
"Custodian"....................................... 6.01
"Defaulted Interest".............................. 2.02
"Depository"...................................... 2.11
"Direct Action"................................... 6.08
"Event of Default"................................ 6.01
"Global Debenture"................................ 2.11
"Legal Holiday"................................... 13.08
"Notice of Default"............................... 6.01
"Property Trustee"................................ 6.01
"Register"........................................ 2.04
"Registrar"....................................... 2.04
"Successor"....................................... 5.01
SECTION 1.03 INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Debentures.
"indenture security holder" means a Debentureholder or 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 Debentures.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
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SECTION 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) each capitalized term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including, without limitation;
(e) words in the singular include the plural, and words in the
plural include the singular; and
(f) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
SECTION 1.05 ACTS OF HOLDERS AND HOLDERS OF PREFERRED SECURITIES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders or by holders of Preferred Securities may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
or holders of Preferred Securities, as applicable, in person or by an agent duly
appointed in writing and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders or holders of
Preferred Securities signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository that
is a Holder of a Global Debenture, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders, and a Depository that is a
Holder of a Global Debenture may provide its proxy or proxies to the beneficial
owners of interests in any such Global Debenture through such Depository's
standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Debentures shall be proved by the Register.
(d) Any Act of the Holder of any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture issued upon the
transfer thereof or in exchange therefor or
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in lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Debenture.
(e) If the Company solicits from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by or pursuant to a resolution of its Board of Directors,
fix in advance a Record Date for the determination of Holders entitled to give
such Act, but the Company shall have no obligation to do so. If such a Record
Date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after such Record Date, but only
Holders of record at the close of business on such Record Date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Debentures have authorized or agreed or consented to
such Act, and for that purpose the outstanding Debentures shall be computed as
of such Record Date.
ARTICLE 2
THE DEBENTURES
SECTION 2.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debentures which may be authenticated
and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series in an amount not to
exceed the aggregate principal amount of Debentures of that series from time to
time authorized by or pursuant to a Board Resolution, or pursuant to one or more
indentures supplemental hereto, prior to the initial issuance of Debentures of a
particular series.
With respect to any Debentures of each series to be authenticated and
delivered hereunder, there shall be established in or pursuant to a Board
Resolution, and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto:
(a) the title of the Debentures of the series (which shall distinguish
the Debentures of the series from all other Debentures);
(b) any limit upon the aggregate principal amount of the Debentures of
that series which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Debentures of that series);
(c) Stated Maturity Date or Dates, which may be serial and the
Company's option, if any, to change the Stated Maturity Date or Dates;
(d) the rate or rates (which may be fixed or variable) at which the
Debentures of the series shall bear interest or the manner of calculation of
such rate or rates, if any;
(e) the basis upon which interest shall be computed if other than a
360-day year composed of twelve 30-day months;
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(f) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of
determination and frequency of such Interest Payment Dates and the Regular
Record Dates therefor;
(g) the right, if any, to extend the interest payment periods and the
duration of any such Extension Period, including the maximum consecutive period
during which interest payment periods may be extended;
(h) Issue Date or Dates;
(i) authorized denominations;
(j) the place or places for the payment of principal and premium, if
any, and interest;
(k) the date or dates on which or the period or periods within which,
the price or prices at which, and the terms and conditions upon which,
Debentures of the series may be redeemed, in whole or in part, at the option of
the Company;
(l) the obligation, if any, of the Company to redeem or purchase
Debentures of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in anticipation of future sinking fund
obligations) or at the option of a Holder and the date or dates on which or the
period or periods within which, the price or prices at which, and the terms and
conditions upon which, Debentures of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(m) the form of the Debentures of the series, including the form of the
Certificate of Authentication for such series;
(n) the right or obligation of any Holder or the Company or the
applicable Trust to convert or exchange any Debenture into other securities of
the Company or such Trust and the terms and conditions of any such conversion or
exchange and, if so provided, the terms and conditions upon which such
conversion or exchange will be effected, including, the conversion or exchange
price, the conversion or exchange date(s) or period(s), provisions as to whether
conversion or exchange will be at the option of the Holder or the Company or
such Trust, the events requiring adjustment of the conversion or exchange price
and provisions affecting conversion or exchange in the event of redemption of
the Debenture of any series and any deletions from or modifications or additions
to this Indenture to permit or to facilitate the issuance of such convertible or
exchangeable Debentures or the administration thereof;
(o) whether the Debentures are issuable as a Global Debenture and, in
such case, the identity of the Depository for such series;
(p) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture); and
(q) the name of the applicable Trust (which shall distinguish such
statutory business trust from all other Trusts) to which the Debentures of such
series are to be deposited as assets and the date of its Trust Agreement.
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The Debentures of any series and the Trustee's Certificate of
Authentication to be borne by such Debentures shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution and as set forth in an Officers' Certificate,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which Debentures of that series may be listed, or to
conform to usage.
All Debentures of any one series shall be substantially identical
except as may otherwise be provided by the Company in or pursuant to the Board
Resolution and set forth in the Officers' Certificate or in any indenture or
indentures supplemental hereto pertaining to such series of Debentures. The
terms of the Debentures of any series may provide, without limitation, that the
Debentures shall be authenticated and delivered by the Trustee on original issue
from time to time upon telephonic or written order of persons designated in the
Officers' Certificate or supplemental indenture (telephonic instructions to be
promptly confirmed in writing by such person) and that such persons are
authorized to determine, consistent with such Officers' Certificate or any
applicable supplemental indenture, such terms and conditions of the Debentures
of such series as are specified in such Officers' Certificate or supplemental
indenture. All Debentures of any one series need not be issued at the same time
and, unless otherwise so provided by the Company, a series may be reopened for
issuances of additional Debentures of such series or to establish additional
terms of such series of Debentures.
If any of the terms of the Debentures of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
SECTION 2.02 PAYMENT OF PRINCIPAL AND INTEREST.
Unless otherwise specified pursuant to Section 2.01(e), interest on the
Debentures shall be computed on the basis of a 360-day year composed of twelve
30-day months.
Unless otherwise provided with respect to a series of Debentures,
(a) the principal and Redemption Price of and interest on each
Debenture shall be payable in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts;
(b) the principal and Redemption Price of any Debenture and interest
payable on the Stated Maturity Date (if other than an Interest Payment Date) or
Redemption Date shall be payable upon surrender of such Debenture at the Office
or Agency of any Paying Agent therefor; and
(c) interest on any Debenture shall be paid on each Interest Payment
Date therefor to the Holder thereof at the close of business on the Record Date
therefor, such interest to be payable by check mailed to the address of the
Person entitled thereto as such address appears on the Register; provided
however, that (i) at the written request of any Holder of at least $10,000,000
aggregate principal amount of Debentures received by the Registrar not later
than the Regular Record Date for such Interest Payment Date, interest accrued on
such Debentures will be payable by wire transfer within the continental United
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States in immediately available funds to the bank account number of such Holder
specified in such request and entered on the Register by the Registrar and (ii)
payments made in respect of Global Debentures shall be made in immediately
available funds to the Depository.
Except as specified pursuant to Section 2.01 or Section 4.01(b),
interest on any Debenture which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Debenture (or one or more Predecessor Debentures) is registered at the
close of business on the Regular Record Date for such interest. Any interest on
any Debenture which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (i) and (ii)
below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) 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, not less than 15 Business Days prior to the date of the proposed
payment, notify the Trustee and the Paying Agent in writing of the
amount of Defaulted Interest proposed to be paid on each Debenture and
the date of the proposed payment, and at the same time the Company
shall deposit with the Paying Agent 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 Paying Agent
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause. The
Special Record Date for the payment of such Defaulted Interest shall be
the close of business not more than 15 nor less than 10 days prior to
the date of the proposed payment. The Trustee shall, in the name and at
the expense of the Company, cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given to the Holders thereof, 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 given, such
Defaulted Interest shall be paid to the Persons in whose names the
Debentures (or their respective Predecessor Debentures) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on
the Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee and the Paying Agent
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Paying Agent.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debenture.
If any convertible Debenture of any series is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Debenture with respect to which the Stated Maturity Date is
prior to such Interest Payment Date), interest that is due on such Interest
Payment
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Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Debenture is registered at
the close of business on such Regular Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Debenture
that is converted, interest shall not be payable if the Regular Record Date is
after the date of conversion of such Debenture.
SECTION 2.03 EXECUTION, AUTHENTICATION AND DELIVERY.
(a) The Debentures shall be executed on behalf of the Company by its
Chief Executive Officer, its Chief Financial Officer, its President or one of
its Vice Presidents, its Treasurer or one of its Assistant Treasurers under its
corporate seal imprinted or reproduced thereon and attested by its Secretary or
one of its Assistant Secretaries. The signature of any such Officer on the
Debentures may be manual or facsimile.
(b) Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debentures or
did not hold such offices at the date of such Debentures.
(c) No Debenture shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debenture
a Certificate of Authentication duly executed by the Trustee by manual signature
of a Responsible Officer, and such Certificate of Authentication upon any
Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated and made available for delivery hereunder.
(d) The Trustee shall authenticate and deliver Debentures of a series,
for original issue, at one time or from time to time in accordance with the
Company Order referred to below, upon receipt by the Trustee of:
(i) a Board Resolution as required by Section 2.01;
(ii) a Company Order requesting the authentication and
delivery of such Debentures and stating the identity of the applicable
Trust and the aggregate liquidation amount of the Trust Securities to
be issued by such Trust concurrently with such Debentures;
(iii) an Officers' Certificate or, unless previously
delivered, a supplemental indenture hereto setting forth the form of
such Debentures and, except as set forth in a Board Resolution,
establishing the terms thereof;
(iv) such Debentures, executed on behalf of the Company in
accordance with clause (a) of this Section;
(v) an Opinion of Counsel to the effect that:
(1) the form or forms of such Debentures have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture;
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(2) such Debentures, when authenticated and delivered
by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will have been duly issued under this Indenture
and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their terms,
subject, as to enforcement to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(3) that any supplemental indenture referred to in
clause (iii) above has been duly authorized, executed and
delivered by the Company and is a valid instrument legally
binding upon the Company, enforceable in accordance with its
terms, subject as to enforcement to laws relating to or
affecting creditors' rights, including without limitation,
bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(4) that all consents, approvals and orders of any
commission, governmental authority or agency required in
connection with the issuance and delivery of such Debentures
have been obtained; and
(vi) an Officers' Certificate certifying that no Default or
Event of Default has occurred and is continuing.
(e) The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent. Each authenticating
agent shall be acceptable to the Company and, except as provided in or pursuant
to this Indenture, shall at all times be a corporation that would be permitted
by the TIA to act as trustee under an indenture qualified under the TIA, is
authorized under applicable law and by its charter to act as an authenticating
agent and has a combined capital and surplus (computed in accordance with
Section 310(a)(2) of the TIA) of at least $50,000,000. If at any time an
authenticating agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section. An authenticating agent may authenticate
Debentures whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by an authenticating
agent. The Trustee shall pay any authenticating agent appointed by the Trustee
reasonable compensation for its services and the Trustee shall be reimbursed for
such payment by the Company pursuant to Section 7.06. The provisions set forth
in Sections 7.02, 7.03 and 7.06 shall be applicable to any authenticating agent.
(f) If all the Debentures of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Debenture, but such
opinion and certificate, with appropriate modifications, shall be delivered at
or before the time of issuance of the first Debenture of such series. After any
such first delivery, any separate request by the Company that the Trustee
authenticate Debentures of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Debentures continue to
have been complied with.
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SECTION 2.04 REGISTRAR AND PAYING AND CONVERSION AGENTS.
The Company shall maintain or cause to be maintained, in the City of
New York, an Office or Agency where the Debentures may be presented for
registration of transfer or for exchange ("Registrar"), a Paying Agent at whose
Office the Debentures may be presented or surrendered for payment, a Conversion
Agent at whose Office the Debentures may be presented and surrendered in the
event of a conversion or exchange ("Conversion Agent"), and an Office or Agency
where notices and demands to or upon the Company in respect of the Debentures
and this Indenture may be served. The Registrar shall keep a register (the
"Register") of the Debentures and of their transfer and exchange. The Company
may have one or more co-Registrars and one or more additional Paying Agents and
Conversion Agents. The term Registrar includes any additional registrar, the
term Paying Agent includes any additional paying agent and the term Conversion
Agent includes any additional conversion agent.
Unless otherwise specified in or pursuant to this Indenture or the
Debentures, the Trustee shall be the initial Registrar for each series of
Debentures. The Company shall have the right to remove and replace from time to
time the Registrar for any series of Debentures; provided that no such removal
or replacement shall be effective until a successor Registrar with respect to
such series of Debentures shall have been appointed by the Company and shall
have accepted such appointment by the Company. In the event that the Trustee
shall not be or shall cease to be Registrar with respect to a series of
Debentures, it shall have the right to examine the Register for such series at
all reasonable times. There shall be only one Register for each series of
Debentures.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-Registrar (if not the Company or
the Trustee or an Affiliate of the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall give
prompt written notice to the Trustee and to the Holders of any change of
location of such Office or Agency. If at any time the Company shall fail to
maintain or cause to be maintained 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 address of the
Trustee set forth in Section 13.02 hereof. The Company shall notify the Trustee
of the name and address of any such agent. If the Company fails to maintain a
Registrar, Paying Agent, Conversion Agent or agent for service of notices or
demands, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.06. The Company or any Affiliate of
the Company may act as Paying Agent, Registrar, Conversion Agent or co-Registrar
or agent for service of notices and demands.
The Company may also from time to time designate one or more other
Offices or Agencies where the Debentures may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee and to the Holders of any
such designation or rescission and of any change in location of any such other
Office or Agency.
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST.
Except as otherwise provided herein, prior to or on each due date of
the principal of and premium, if any, and interest on any Debenture, the Company
shall deposit with the Paying Agent a sum of money sufficient to pay such
principal, premium, if any, and interest so becoming due. The Company shall
require each Paying Agent (other than the Trustee or the Company) to agree in
writing that such Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying
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Agent for the payment of principal of and premium, if any, and interest on the
Debentures and shall notify the Trustee of any default by the Company in making
any such payment. At any time during the continuance of any such default, the
Paying Agent shall, upon the request of the Trustee, pay to the Trustee all
money so held in trust and account for any money disbursed by it. The Company at
any time may require the Paying Agent to pay all money held by it to the Trustee
and to account for any money disbursed by it. Upon doing so, the Paying Agent
shall have no further liability for the money so paid over to the Trustee. If
the Company, a Subsidiary or an Affiliate of either of them acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund.
SECTION 2.06 DEBENTUREHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable, the most recent list available to it of the names and addresses of
Debentureholders. If the Trustee is not the Registrar, the Company shall cause
to be furnished to the Trustee on or before the Record Date for each Interest
Payment Date and at such other times as the Trustee may request in writing,
within five Business Days of such request, a list, in such form as the Trustee
may reasonably require of the names and addresses of Debentureholders.
SECTION 2.07 TRANSFER AND EXCHANGE.
When Debentures are presented to the Registrar or a co-Registrar with a
request to register the transfer or to exchange them for an equal principal
amount of Debentures of the same series of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transactions are met. To permit registrations
of transfer and exchanges, the Company shall execute and the Trustee shall
authenticate Debentures, all at the Registrar's request.
Every Debenture presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder or his attorney duly
authorized in writing.
The Company shall not require payment of a service charge for any
registration of transfer or exchange of Debentures, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of the transfer
or exchange of Debentures from the Debentureholder requesting such transfer or
exchange (other than any exchange of a temporary Debenture for a definitive
Debenture not involving any change in ownership).
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) any Debenture for a period beginning at
the opening of business 15 days before the
mailing of a notice of redemption of Debentures and ending at the close of
business on the day of such mailing or (b) any Debenture selected, called or
being called for redemption, except, in the case of any Debenture to be redeemed
in part, the portion thereof not to be redeemed.
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SECTION 2.08 REPLACEMENT DEBENTURES.
If (a) any mutilated Debenture is surrendered to the Company or the
Trustee, or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debenture, and there is
delivered to the Company and the Trustee such Debenture or indemnity as may
reasonably be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Debenture has been
acquired by a bona fide purchaser, the Company shall execute in exchange for any
such mutilated Debenture, or in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of the same series and of like tenor and principal
amount, bearing a number not contemporaneously outstanding, and the Trustee
shall authenticate and make such new Debenture available for delivery.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, or is about to be redeemed by the
Company pursuant to Article 3, the Company in its discretion may, instead of
issuing a new Debenture, pay or purchase such Debenture, as the case may be.
Upon the issuance of any new Debentures under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the reasonable fees and expenses of the Trustee) in
connection therewith.
Every new Debenture issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company (whether or not the mutilated,
destroyed, lost or stolen Debenture shall be at any time enforceable) and shall
be entitled to all benefits of this Indenture equally and ratably with any and
all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 2.09 OUTSTANDING DEBENTURES; DETERMINATIONS OF HOLDERS' ACTION.
Debentures outstanding at any time are all the Debentures authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those mutilated, destroyed, lost or stolen Debentures referred to
in Section 2.08, those redeemed by the Company pursuant to Article 3, and those
described in this Section as not outstanding. A Debenture does not cease to be
outstanding because the Company or a Subsidiary or Affiliate thereof holds the
Debenture; provided, however, that in determining whether the Holders of the
requisite principal amount of Debentures have given or concurred in any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Debentures owned by the Company or a Subsidiary or Affiliate (other than any
Trust so long as any of the Preferred Securities of such Trust are outstanding)
shall be disregarded and deemed not to be outstanding.
Subject to the foregoing, only Debentures outstanding at the time of
such determination shall be considered in any such determination (including
determinations pursuant to Articles 3, 6 and 9).
If a Debenture is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof reasonably satisfactory to it that
the replaced Debenture is held by a bona fide purchaser.
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If the Paying Agent (other than the Company) holds, in accordance with
this Indenture, at the Stated Maturity Date or on a Redemption Date, money
sufficient to pay the Debentures payable on that date, then immediately on the
Stated Maturity Date or such Redemption Date, as the case may be, such
Debentures shall cease to be outstanding, and interest, if any, on such
Debentures shall cease to accrue.
SECTION 2.10 TEMPORARY DEBENTURES.
The Company may execute temporary Debentures, and upon the Company's
Order, the Trustee shall authenticate and make such temporary Debentures
available for delivery. Temporary Debentures shall be printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
in the same series and principal amount and of like tenor as the definitive
Debentures in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the Officers of the
Company executing such Debentures may determine, as conclusively evidenced by
their execution of such Debentures. Such temporary Debentures may be in global
form.
Except in the case of temporary Debentures in global form, which shall
be exchanged in accordance with the provisions thereof, after the preparation of
definitive Debentures, the temporary Debentures shall be exchangeable for
definitive Debentures of the same series upon surrender of the temporary
Debentures at the Office or Agency of the Company designated for such purpose
pursuant to Section 2.04, without charge to the Holders thereof. Upon surrender
for cancellation of any one or more temporary Debentures, the Company shall
execute a like principal amount of definitive Debentures of the same series of
authorized denominations, and the Trustee, upon receipt of a Company Order,
shall authenticate and make such Debentures available for delivery in exchange
therefor. Until so exchanged, the temporary Debentures shall in all respects be
entitled to the same benefits under this Indenture as definitive Debentures.
SECTION 2.11 BOOK-ENTRY SYSTEM.
In order to utilize a book-entry-only system for all or any portion of
the Debentures of any series, all or a portion of the Debentures of any series
may be issued in the form of one or more fully registered Debentures of the same
series for the aggregate principal amount of such Debentures (a "Global
Debenture"), which Global Debenture shall be registered in the name of the
depository (the "Depository") selected by the Company or in the name of such
Depository's nominee. Each Global Debenture shall be delivered by the Trustee to
the Depository or pursuant to the Depository's instruction and shall bear a
legend substantially to the following effect: "This Debenture may be
transferred, in whole but not in part, only to another nominee of the Depository
or to a successor Depository or to a nominee of such successor Depository."
Notwithstanding any other provision of this Section or of Section 2.07,
a Global Debenture may be transferred in whole but not in part and in the manner
provided in Section 2.07, only by a nominee of the Depository for such series,
or by the Depository or any such nominee of a successor Depository for such
series selected or approved by the Company or to a nominee of such successor
Depository.
If (a) at any time the Depository for Global Debentures of any series
of Debentures notifies the Company that it is unwilling or unable to continue as
Depository for such Global Debentures or if at any time the Depository for such
Global Debentures shall no longer be a clearing agency registered or in good
standing under the Exchange Act or other applicable statute or regulation, and a
successor Depository for such Global Debentures is not appointed by the Company
within 90 days after the
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Company receives such notice or becomes aware of such condition, as the case may
be, (b) the Company determines in its sole discretion, that the Debentures of
any series shall no longer be represented by one or more Global Debentures and
delivers to the Trustee an Officers' Certificate evidencing such determination
or (c) a Default or an Event of Default occurs and is continuing, then the
provisions of this Section shall no longer apply to the Debentures of such
series. In such event, the Company will execute and the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver Debentures of such series and of like tenor in
definitive registered form, in authorized denominations, and in aggregate
principal amount equal to the principal amount of the Global Debentures of such
series in exchange for such Global Debentures. Upon the exchange of Global
Debentures for such Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debentures shall be canceled by the
Trustee. Such Debentures in definitive registered form issued in exchange for
Global Debentures pursuant to this Section shall be registered in such names and
in such authorized denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Debentures to the Persons in whose names
such Debentures are so registered.
Except as provided above or as provided in any supplemental indenture,
owners of beneficial interests in a Global Debenture shall not be entitled to
receive physical delivery of Debentures in definitive form and will not be
considered the Holders thereof for any purpose under this Indenture.
Members of or participants in the Depository shall have no rights under
this Indenture with respect to any Global Debenture held on their behalf by the
Depository, and such Depository or its nominee, as the case may be, may be
treated by the Company, the Trustee, and any agent of the Company or the Trustee
as the Holder of such Global Debentures for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its members or participants, the
operation of customary practices governing exercise of the rights of a Holder of
any Debenture, including without limitation the granting of proxies or other
authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under this Indenture.
SECTION 2.12 CANCELLATION.
All Debentures surrendered for payment, redemption, registration of
transfer, exchange or conversion or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Debentures previously
authenticated and made available for delivery hereunder which the Company may
have acquired in any manner whatsoever, and all Debentures so delivered shall be
promptly canceled by the Trustee. The Company may not reissue or issue new
Debentures to replace Debentures it has paid or delivered to the Trustee for
cancellation. No Debentures shall be authenticated in lieu of or in exchange for
any Debentures canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Debentures held by the Trustee shall
be destroyed by the Trustee, and the Trustee shall deliver a certificate of
destruction to the Company.
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ARTICLE 3
REDEMPTION
SECTION 3.01 REDEMPTION: NOTICE TO TRUSTEE.
(a) The Company may redeem the Debentures of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01.
(b) If any or all of the Debentures are to be redeemed pursuant to this
Section, the Company shall deliver to the Trustee no more than 60 and no less
than 45 days prior to the Redemption Date a Company Order specifying the series
and principal amount of Debentures to be redeemed and the Redemption Date and
Redemption Price for such Debentures. Such Company Order shall be accompanied by
a Board Resolution authorizing such redemption. If the Debentures of a series
are held by a Trust, the Company shall also deliver a copy of such Company Order
to the Property Trustee for such Trust.
SECTION 3.02 SELECTION OF DEBENTURES TO BE REDEEMED.
If less than all the outstanding Debentures of a series are to be
redeemed at any time, the Trustee shall select the Debentures of such series to
be redeemed by lot or by any other method the Trustee considers fair and
appropriate. The Trustee shall make the selection at least 30 but not more than
60 days before the Redemption Date from outstanding Debentures of such series
not previously called for redemption. Provisions of this Indenture that apply to
Debentures called for redemption also apply to portions of Debentures called for
redemption. The Trustee shall notify the Company promptly of the Debentures or
portions of Debentures to be redeemed.
SECTION 3.03 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before the Redemption Date,
the Trustee, in the Company's name and at the Company's expense, shall mail or
cause to be mailed a notice of redemption by first-class mail, postage prepaid,
to each Holder of Debentures to be redeemed at such Holder's last address as it
appears in the Register.
The notice of redemption shall identify the Debentures to be redeemed,
the provision of the Debentures or this Indenture pursuant to which the
Debentures called for redemption are being redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that payment of the Redemption Price of Debentures called for
redemption will be made only upon surrender of such Debentures to the Paying
Agent;
(e) if fewer than all the outstanding Debentures of any series are to
be redeemed, the identification and principal amounts of the particular
Debentures to be redeemed and that, on and after
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the Redemption Date, upon surrender of such Debentures, a new Debenture or
Debentures of the same series and of like tenor and in a principal amount equal
to the unredeemed portion thereof will be issued;
(f) that, unless the Company defaults in paying the Redemption Price of
the Debentures called for redemption, including accrued interest thereon to the
Redemption Date, interest will cease to accrue on such Debentures on and after
the Redemption Date;
(g) that the redemption is for a sinking fund, if such is the case; and
(h) in the case of Debentures of any series that are convertible or
exchangeable into Capital Stock, the conversion or exchange price or rate, the
date or dates on which or the period or periods during which the right to
convert or exchange the principal of the Debentures of such series to be
redeemed will commence or terminate and the place or places where such
Debentures may be surrendered for conversion or exchange .
Any notice of redemption given in the manner provided herein shall be
conclusively presumed to have been given, whether or not such notice is actually
received. Failure to mail any notice or defect in the mailed notice or the
mailing thereof in respect of any Debenture shall not affect the validity of the
redemption of any other Debenture.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
After notice of redemption has been given, Debentures called for
redemption shall become due and payable on the Redemption Date at the Redemption
Price and from and after the Redemption Date (unless the Company shall default
in the payment of the Redemption Price and accrued interest), such Debentures
shall cease to bear interest. Upon the later of the Redemption Date and the date
such Debentures are surrendered to the Paying Agent, such Debentures shall be
paid at the Redemption Price, plus accrued interest to the Redemption Date,
provided that installments of interest on Debentures with an Interest Payment
Date which is on or prior to the Redemption Date shall be payable to the Holders
of such Debentures, registered as such at the close of business on the Regular
Record Dates therefor according to their terms and provisions.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or an Affiliate is the Paying Agent, shall
segregate and hold in trust or cause such Affiliate to segregate and hold in
trust) money sufficient to pay the Redemption Price of, and accrued interest on,
all Debentures to be redeemed on that Redemption Date. The Paying Agent shall
return to the Company any money in excess of the amount sufficient to pay the
Redemption Price of, and accrued interest on, all Debentures to be redeemed and
any interest accrued on the amount deposited pursuant to this Section.
SECTION 3.06 DEBENTURES REDEEMED IN PART.
Upon surrender of a Debenture that is redeemed in part, the Trustee
shall authenticate for the Holder a new Debenture of the same series and in a
principal amount equal to the unredeemed portion of such Debenture.
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ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
(a) The Company shall pay the principal of and premium, if any, and
interest (including interest accruing during any Extension Period and/or on or
after the filing of a petition in bankruptcy or reorganization relating to the
Company, whether or not a claim for post-filing interest is allowed in such
proceeding) on the Debentures on or prior to the dates and in the manner
provided in such Debentures or pursuant to this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the
applicable due date if on such date the Trustee or the Paying Agent holds, in
accordance with this Indenture, money sufficient to pay all of such installment
then due. With respect to any Debenture, the Company shall pay interest on
overdue principal and interest on overdue installments of interest (including
interest accruing during any Extension Period and/or on or after the filing of a
petition in bankruptcy or reorganization relating to the Company, whether or not
a claim for post-filing interest is allowed in such proceeding), to the extent
lawful, at the rate accruing on such Debenture, compounded with the same
frequency as interest is payable on such Debentures. Interest on overdue
interest shall accrue from the date such amounts become overdue.
(b) Notwithstanding the provisions of Section 4.01(a) or any other
provision herein to the contrary, the Company shall have the right, as provided
in a Board Resolution or supplemental indenture issued pursuant to Section 2.01,
in its sole and absolute discretion at any time and from time to time while the
Debentures of any series are outstanding, so long as no Event of Default with
respect to such series of Debentures has occurred and is continuing, to defer
payments of interest by extending the interest payment period for such series of
Debentures for the maximum consecutive period, if any, specified for such series
of Debentures, provided that such Extension Period must end on an Interest
Payment Date and shall not extend beyond the Stated Maturity Date or Redemption
Date of any Debenture of such series, and provided further that at the end of
each Extension Period the Company shall pay all interest then accrued and unpaid
(together with interest thereon to the extent permitted by applicable law at the
rate accruing on such Debentures). Prior to the termination of an Extension
Period, the Company may shorten or may further extend the interest payment
period for such series of Debentures, provided that such Extension Period
together with all such previous and further extensions may not exceed the
maximum consecutive period specified for such series of Debentures, end on a
date other than an Interest Payment Date or extend beyond the Stated Maturity
Date or Redemption Date of any Debenture of such series. The Company shall give
the Trustee notice of the Company's election to begin an Extension Period for
any series of Debentures and any shortening or extension thereof at least five
Business Days prior to: (i) the date notice of payment of interest on such
Debentures is required to be given to any national securities exchange on which
the related Preferred Securities, if any, or Debentures are then listed or other
applicable self-regulatory organization or (ii) the date of the notice of the
record or payment date of the related distribution on the Preferred Securities
issued by the Trust which is the Holder of the Debentures of such series, but in
any event not less than five Business Days prior to the Record Date fixed by the
Company for the payment of such interest. The Company shall give or cause the
Trustee to give notice (a form of which shall be provided by the Company to the
Trustee) of the Company's election to begin an Extension Period to the Holders
by first class mail, postage prepaid.
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SECTION 4.02 PROHIBITION AGAINST DIVIDENDS, ETC.
The Company shall not (a) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Company's Capital Stock or (b) make any payment of principal of or
premium, if any, or interest on or repay or repurchase or redeem any debt
securities of the Company (including Debentures) that rank pari passu with or
junior in right of payment to the Debentures or (c) make any guarantee payments
with respect to any guarantee by the Company of the debt securities of any
Subsidiary of the Company (including any Guarantee) if such guarantee ranks pari
passu or junior in right of payment to the Debentures (other than (i) dividends
or distributions in shares of, or options, warrants or rights to subscribe for
or purchase shares of, Common Stock of the Company, (ii) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (iii) payments under any
Guarantee, (iv) as a result of a reclassification of the Company's Capital Stock
or the exchange or conversion of one class or series of the Company's Capital
Stock for another class or series of the Company's Capital Stock, (v) the
purchase of fractional interests in shares of the Company's Capital Stock
pursuant to the conversion or exchange provisions of such Capital Stock or the
security being converted or exchanged, and (vi) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Company's
benefit plans for its directors, officers or employees or any of the Company's
dividend reinvestment plans): (X) during any Extension Period, (Y) if at such
time there shall have occurred and is continuing any Default or Event of
Default, or (Z) if the Company shall be in default with respect to its payment
or other obligations under any Guarantee.
SECTION 4.03 SEC REPORTS.
The Company shall file with the Trustee, within 15 days after it files
them with the SEC, copies of its annual report and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company
is not subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Trustee such information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which are specified in
Section 13 or 15(d) of the Exchange Act. The Company shall also comply with the
provisions of Section 314(a) of the TIA.
SECTION 4.04 COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each of the Company's fiscal years, an Officers' Certificate stating
whether or not the signer knows of any Default or Event of Default. Such
certificate shall contain a certification from the Principal Executive Officer,
Principal Financial Officer or Principal Accounting Officer of the Company as to
his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section, such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Indenture. If such Officer does know of such a
Default or Event of Default, the Officers' Certificate shall describe any such
Default or Event of Default, and its status. Such Officers' Certificate need not
comply with Sections 13.04 and 13.05.
(b) The Company shall deliver to the Trustee any information reasonably
requested by the Trustee in connection with the compliance by the Trustee or the
Company with the TIA.
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SECTION 4.05 FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
SECTION 4.06 PAYMENT OF EXPENSES OF EACH TRUST.
The Company covenants for the benefit of the Holders of each series of
Debentures to pay all of the obligations, costs and expenses of such Trust
(other than payments in respect of Trust Securities) in accordance with the
provisions of its Trust Agreement and to pay the taxes of such Trust in
accordance with the provisions of its Trust Agreement in order to permit such
Trust to make distributions on and redemptions of its Preferred Securities in
accordance with such Trust Agreement.
SECTION 4.07 OWNERSHIP OF COMMON SECURITIES.
So long as the Trust Securities of each Trust remain outstanding, the
Company hereby covenants (a) to maintain 100% direct or indirect ownership of
the common securities issued by such Trust (it being understood that any
permitted successor of the Company under this Indenture may succeed to the
Company's ownership of such common securities), (b) to use its best efforts to
cause each Trust (i) to remain a business trust, except in connection with the
distribution of Debentures to the holders of related Trust Securities in
liquidation of such Trust, the conversion, exchange or redemption of all of such
Trust Securities, or certain mergers, consolidations or amalgamations, each as
permitted by the applicable Trust Agreement, and (ii) to otherwise continue to
be classified as a grantor trust for United States federal income tax purposes,
(c) to use its best efforts to cause each holder of each Trust's Trust
Securities to be treated as owning an undivided beneficial interest in the
related Debentures and (d) not to cause, as sponsor of each Trust, or to permit,
as holder of the common securities, the dissolution, liquidation or winding-up
of any Trust, except as provided in the applicable Trust Agreement.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 WHEN THE COMPANY MAY MERGE, ETC.
The Company may not consolidate with or merge with or into, or sell,
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to, any Person, and no Person shall consolidate with or merge into
the Company or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to the Company, unless:
(a) the Person formed by or surviving such consolidation or merger or
to which such sale, conveyance, transfer or lease shall have been made (the
"Successor") if other than the Company (i) is organized and existing under the
laws of the United States of America or any state thereof or the District of
Columbia, and (ii) shall expressly assume by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Debentures, this Indenture and the
Guarantees;
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(b) immediately prior to and after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the Successor
Person or any Subsidiary as a result of such transaction as having been incurred
by such Person or such Subsidiary at the time of such transaction), no Default
or Event of Default shall have occurred and be continuing; and
(c) the Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and such supplemental indenture comply with this
Indenture.
The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the obligor
on the Debentures with the same effect as if the Successor had been named as the
Company herein but, in the case of a sale, conveyance, transfer or lease of all
or substantially all of the assets of the Company, the predecessor Company will
not be released from its obligation to pay the principal of and premium, if any,
and interest on the Debentures.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Debentures of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(a) default in the payment, when due, of interest on any Debenture of
that series and the default continues for a period of 30 days; provided, that
during any Extension Period for the Debentures of that series, failure to pay
interest on the Debentures of that series shall not constitute a Default or
Event of Default hereunder, or
(b) default in the payment of the principal of or premium, if any, on
any Debenture of such series when it becomes due, whether at maturity, upon any
redemption, by declaration of acceleration of maturity or otherwise; or
(c) default in the deposit of any sinking fund payment when and as due
by the terms of a Debenture of such series; or
(d) default in the performance or breach of any covenant or agreement
of the Company in this Indenture (other than a covenant or agreement a default
in the performance or the breach of which is elsewhere in this Section
specifically dealt with or which has been expressly included in this Indenture
solely for the benefit of a series of Debentures), and continuance of such
breach or default for a period of 90 days after receipt by the Company of a
"Notice of Default"; or
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(e) a court of competent jurisdiction enters:
(i) a decree or order for relief in respect of the Company in
an involuntary proceeding under any applicable Bankruptcy Law and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(ii) a decree or order adjudging the Company to be insolvent,
or approving a petition seeking reorganization, arrangement, adjustment
or composition of the Company and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a Custodian
of the Company or of any substantial part of the property of the
Company, or ordering the winding up or liquidation of the affairs of
the Company; or
(f) the Company pursuant to or within the meaning of any Bankruptcy
Law: (i) commences a voluntary case or proceeding; (ii) consents to the entry of
an order for relief against it in an involuntary case or proceeding; (iii) files
a petition or answer or consent seeking reorganization or relief or consents to
such filing or to the appointment of or taking possession by a Custodian of it
or for all or substantially all of its property, and such Custodian is not
discharged within 60 days; (iv) makes a general assignment for the benefit of
its creditors; or (v) admits in writing its inability to pay its debts generally
as they become due; or
(g) if applicable, failure by the Company to deliver the required
securities or other rights upon an appropriate conversion or exchange election
by Holders of the Debentures or the related Preferred Securities; or
(h) any other Event of Default provided in or pursuant to this
Indenture with respect to Debentures of such series.
The term "Bankruptcy Law" means Title 11 of the United States Code, or
any similar federal or state bankruptcy, insolvency, reorganization or other law
for the relief of debtors. "Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator, custodian or similar official under any Bankruptcy
Law.
A Default under clause (d) above is not an Event of Default until (i)
the Trustee provides a "Notice of Default" to the Company or the Holders of at
least 25% in aggregate principal amount of the Debentures of that series at the
time outstanding or, if that series of Debentures is held by a Trust, the
holders of at least 25% in aggregate liquidation amount of the outstanding
Preferred Securities of that Trust provide a "Notice of Default" to the Company
and the Trustee and (ii) the Company does not cure such Default within the time
specified in clause (d) above after receipt of such notice. Any such notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default."
SECTION 6.02 ACCELERATION.
If any Event of Default with respect to the Debentures of any series
other than an Event of Default under clause (e) or (f) of Section 6.01 occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the Debentures of that series then outstanding may declare
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the principal of, and any accrued interest on, all the Debentures of that series
due and payable immediately, provided that in the case of a series of Debentures
then held by a Trust, if upon an Event of Default with respect to the Debentures
of that series the Trustee has, or the Holders of at least 25% in aggregate
principal amount of the Debentures of that series then outstanding have, failed
to declare the principal of, and any accrued interest on, the Debentures of that
series to be immediately due and payable, the holders of at least 25% in
aggregate liquidation amount of the outstanding Preferred Securities of that
Trust shall have such right by a notice in writing to the Company and the
Trustee. If an Event of Default specified in clause (e) or (f) of Section 6.01
occurs, the principal of, and any accrued interest on, all the Debentures shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Debentureholders.
The foregoing paragraph, however, is subject to the condition that if,
at any time after the principal of the Debentures of that series shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Debentures of that series and
the principal of and premium, if any, on all Debentures of that series which
shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate accruing on the Debentures of that series to the date of such payment or
deposit) and the amount payable to the Trustee under Section 7.06, and any and
all Defaults under the Indenture, other than the nonpayment of principal of and
interest on Debentures of that series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.04, then and
in every such case the Holders of at least a majority in aggregate principal
amount of the Debentures of that series then outstanding (subject to, in the
case of any series of Debentures held as assets of a Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of the
holders of the Preferred Securities and the Common Securities of such Trust as
may be required under the Trust Agreement of such Trust), by written notice to
the Company and to the Trustee, may rescind and annul such declaration and its
consequences with respect to that series of Debentures; but no such rescission
and annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may, in
its own name or as trustee of an express trust, institute, pursue and prosecute
any proceeding, including without limitation, any action at law or suit in
equity or other judicial or administrative proceeding to collect the payment of
principal of or premium, if any, or interest on the Debentures of the series
that is in default, to enforce the performance of any provision of the
Debentures of that series or this Indenture or to obtain any other available
remedy.
The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of the Debentures in the proceeding. A
delay or omission by the Trustee, any Debentureholder or the holders of
Preferred Securities in exercising any right or remedy accruing upon an Event of
Default shall not impair such right or remedy or constitute a waiver of, or
acquiescence in, such Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
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SECTION 6.04 WAIVER OF PAST DEFAULTS.
If a Default or Event of Default with respect to a series of Debentures
has occurred and is continuing, the Holders of at least a majority in aggregate
principal amount of the Debentures of that series at the time outstanding, or,
if that series of Debentures is held by a Trust, the holders of at least a
majority in aggregate liquidation amount of the Preferred Securities of that
Trust, in each case by notice to the Trustee and the Company, may waive an
existing Default or Event of Default and its consequences except a Default or
Event of Default in the payment of the principal of or premium, if any, or
interest on any Debenture of that series (unless such Event of Default has been
cured and a sum sufficient to pay all matured installments of interest and
premium, if any and principal due otherwise than by acceleration has been
deposited with the Trustee) or a default in respect of a covenant or provision
which under this Indenture cannot be modified or amended without the consent of
the holder of each outstanding Debenture of that series. When a Default or Event
of Default is waived, it is deemed cured and shall cease to exist, but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any consequent right.
SECTION 6.05 CONTROL BY HOLDERS.
The Holders of at least a majority in aggregate principal amount of the
Debentures of a series or, if that series of Debentures is held by a Trust, the
holders of at least a majority in aggregate liquidation amount of the Preferred
Securities of that Trust, may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or of exercising any
trust or power conferred on the Trustee, in respect of such series of
Debentures. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines in good
faith is unduly prejudicial to the rights of other Debentureholders or may
involve the Trustee in personal liability. The Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction,
including withholding notice to the Holders of the Debentures of continuing
default (except in the payment of the principal of (other than any mandatory
sinking fund payment) or premium, if any, or interest on any Debentures) if the
Trustee considers it in the interest of the Holders of the Debentures to do so.
SECTION 6.06 LIMITATION ON SUITS.
Except as provided in Section 6.07 or 6.08, no Holder of Debentures of
any series or holder of Preferred Securities of the Trust which is the Holder of
that series of Debentures may pursue any remedy with respect to this Indenture
or the Debentures unless:
(a) the Holders of Debentures of such series or the holders of such
Preferred Securities give to the Trustee written notice stating that an Event of
Default with respect to the corresponding Debentures of such series has occurred
and is continuing;
(b) the Holders of at least 25% in aggregate principal amount of the
outstanding Debentures of that series or the holders of at least 25% in
aggregate liquidation amount of such Preferred Securities make a written request
to the Trustee to pursue a remedy;
(c) the Holders of Debentures of such series or the holders of such
Preferred Securities provide to the Trustee reasonable security and indemnity
against any loss, liability or expense satisfactory to the Trustee;
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(d) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security and indemnity; and
(e) during such 60 day period, the Holders of at least a majority in
aggregate principal amount of the Debentures of that series or the holders of at
least a majority in aggregate liquidation amount of such Preferred Securities do
not give the Trustee a direction inconsistent with the request,
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Debenture to affect, disturb or prejudice the rights of
any other such Holders, or to obtain or seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all such Holders.
SECTION 6.07 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision of this Indenture, the Holder of
any Debenture shall have the right which is absolute and unconditional to
receive payment of the principal of, premium, if any, and (subject to Section
2.02) interest on such Debenture on the respective due dates expressed in such
Debenture (or, in the case of redemption, on the Redemption Date) and to convert
or exchange such Debentures in accordance with its terms, if applicable, and to
institute suit for the enforcement of such payment or conversion or exchange,
and such right shall not be impaired without the consent of such Holder.
SECTION 6.08 DIRECT ACTION RIGHT OF HOLDERS OF TRUST PREFERRED SECURITIES.
If an Event of Default has occurred and is continuing and is
attributable either to (a) the failure of the Company to pay the principal of or
premium, if any, or interest on the Debentures on the due date therefor or (b)
the failure by the Company to deliver the required securities or other rights
upon an appropriate conversion or exchange right election, and an event of
default has occurred and is continuing under the applicable Trust Agreement, a
holder of the related Preferred Securities, in lieu of any action that may
otherwise be taken hereunder as a Holder of Debentures, may institute a legal
proceeding directly against the Company for enforcement of payment to such
holder of the principal of or premium, if any, or interest on such Debentures
having a principal amount equal to the liquidation amount of the Preferred
Securities held by such holder or for enforcement of such conversion or exchange
rights, as the case may be (a "Direct Action"). Notwithstanding anything
contained herein to the contrary, the Company may not amend this Indenture to
remove the foregoing right to bring a Direct Action without the prior written
consent of the holders of all of the Preferred Securities outstanding.
Notwithstanding any payments made to a holder of Preferred Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of and premium, if any, or interest on the related
Debentures, and the Company shall be subrogated to the rights of the holder of
such Preferred Securities with respect to payments on the Preferred Securities
to the extent of any payments made by the Company to such holder in any Direct
Action.
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SECTION 6.09 COLLECTION SUITS BY THE TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any Debenture
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of or premium, if
any, on any Debenture on the Stated Maturity Date or Redemption Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of such Debenture, the whole amount then due and payable on such
Debenture for principal, premium, if any, and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium, if any, and on any overdue interest, at the rate or rates
prescribed therefor in such Debenture and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Debenture and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Debenture, wherever
situated.
If an Event of Default with respect to Debentures of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Debentures of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or such Debentures or in aid of the
exercise of any power granted herein, or to enforce any other remedy available
under this Indenture or by law.
SECTION 6.10 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or its properties or assets, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal of
and premium, if any, and interest on the Debentures 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 the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders of Debentures allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
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the making of such payments directly to the Holders, to pay the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Debenture any plan of reorganization, arrangement, adjustment or composition
affecting the Debentures or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.11 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall,
subject to Article 10, pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.06;
SECOND: to Holders of Debentures in respect of which or for
the benefit of which such money has been collected
for amounts due and unpaid on such Debentures for the
principal thereof or premium, if any, or interest, if
any, thereon ratably, without preference or priority
of any kind, according to such amounts due and
payable on such Debentures; and
THIRD: the balance, if any, to the Company.
Except as otherwise set forth in the Debentures, the Trustee may fix a
Record Date and payment date for any payment to Debentureholders pursuant to
this Section.
SECTION 6.12 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder of Debentures or holder of Preferred Securities
pursuant to Section 6.07 or 6.08 or a suit by Holders of Debentures of more than
10% in aggregate principal amount of the outstanding Debentures of any series
or, if a series of Debentures is held by a Trust, the holders of more than 10%
in aggregate liquidation amount of the Preferred Securities of that Trust.
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ARTICLE 7
THE TRUSTEE
SECTION 7.01 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) If an Event of Default occurs and is continuing with respect to the
Debentures of any series, the Trustee shall exercise the rights and powers
vested in it by this Indenture with respect to that series and use the same
degree of care and skill in its exercise as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Debentures of any series, (i) the Trustee need perform only those duties
with respect to that series that are specifically set forth in this Indenture or
the TIA and no others; and (ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but shall not be required to
confirm or investigate the accuracy of mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this clause (c) does not limit the effect of Section
7.01(b);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to Section 7.01(a), (b), (c) and (e) and Section 7.02.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives security and indemnity reasonably satisfactory to it
against any loss, liability or expense (including reasonable counsel fees).
(f) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur personal liability in the performance
of any of its duties or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Indenture or
indemnity reasonably satisfactory to the Trustee against such risk or liability
is not reasonably assured to it.
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(g) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall not be
liable for interest on any money held by it hereunder except as otherwise agreed
with the Company.
SECTION 7.02 RIGHTS OF THE TRUSTEE.
Subject to Sections 315(a) through 315(d) of the TIA:
(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,
coupon or other paper or document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Order (in each case, other than delivery of
any Debenture to the Trustee for authentication and delivery pursuant to Section
2.03 which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the request or
direction of any of the Holders of Debentures of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
coupon or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours and upon
reasonable notice, the books, records and premises of the Company, personally or
by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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SECTION 7.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCES OF DEBENTURES.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Debentures. The Trustee shall not be accountable for the
Company's use of the proceeds from the Debentures, and the Trustee shall not be
responsible for any statement in this Indenture or the Debentures or any report
or certificate issued by the Company hereunder or any registration statement
relating to the Debentures (other than the Trustee's Certificate of
Authentication and the Trustee's Statement of Eligibility on Form T-1), or the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 7.04 NOTICE OF DEFAULTS.
If a Default occurs and is continuing with respect to the Debentures of
any series and if it is known to the Trustee, the Trustee shall mail to each
Holder of a Debenture of that series notice of the Default within 90 days after
it becomes known to the Trustee unless such Default shall have been cured or
waived. Except in the case of a Default described in Section 6.01(a), (b) or
(g), the Trustee may withhold such notice if and so long as a committee of
Responsible Officers in good faith determines that the withholding of such
notice is in the interests of the Holders of the Debentures of that series. The
Trustee shall not be charged with knowledge of any Default unless a Responsible
Officer assigned to the Corporate Trust Department of the Trustee shall have
actual knowledge of the Default. The second sentence of this Section shall be in
lieu of the proviso to TIA Section 315(b). Said proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 7.05 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each September 1, beginning with the September 1
next following the date of this Indenture, the Trustee shall mail to each
Debentureholder, and such other holders that have submitted their names to the
Trustee for such purpose, a brief report dated as of such September 1 in
accordance with and to the extent required under TIA Section 313.
A copy of each report at the time of its mailing to Debentureholders
shall be filed with the Company, the SEC and any securities exchange on which
the Debentures are listed. The Company agrees to promptly notify the Trustee
whenever the Debentures become listed on any securities exchange and of any
listing thereof.
SECTION 7.06 COMPENSATION AND INDEMNITY.
The Company covenants and agrees:
(a) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses, and advances of its agents and counsel; provided that, prior to any
Default or Event of Default, the Trustee shall only have one outside counsel),
including all
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reasonable expenses and advances incurred or made by the Trustee in connection
with any Default or Event of Default or any membership on any creditors'
committee, except any such expense or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee, its officers, employees, directors and
shareholders, for, and to hold it harmless against, any and all loss, liability
or expense, incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
Before, after or during an Event of Default with respect to the
Debentures of a series, the Trustee shall have a claim and lien prior to the
Debentures of that series as to all property and funds held by it hereunder for
any amount owing it for its fees and expenses or any predecessor Trustee
pursuant to this Section, except with respect to funds held by the Trustee or
any Paying Agent in trust for the payment of principal of or premium, if any, or
interest on Debentures pursuant to Section 2.05 or Section 8.01.
The Company's payment and indemnity obligations pursuant to this
Section are not subject to Article 10 of this Indenture and shall survive the
discharge of this Indenture. When the Trustee renders services or incurs
expenses after the occurrence of a Default specified in Section 6.01, the
compensation for services and expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.07 ELIGIBILITY; DISQUALIFICATION.
(a) The Trustee shall at all times satisfy the requirements of the TIA
Sections 310(a)(1) and 310(a)(2). The Trustee (or any Affiliate thereof which
has unconditionally guaranteed the obligations of the Trustee hereunder) shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recently published annual report of condition. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
(b) The Trustee shall comply with TIA Section 310(b). In determining
whether the Trustee has conflicting interests as defined in TIA Section
310(b)(1), the provisions contained in the proviso to TIA Section 310(b)(1) and
the Trustee's Statement of Eligibility on Form T-1 shall be deemed incorporated
herein.
SECTION 7.08 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.09.
(b) The Trustee may resign at any time with respect to the Debentures
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 7.09 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Debentures of such series.
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(c) If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the TIA, with respect to the Debentures of any
series, it shall, within 90 days after ascertaining it has such conflicting
interest, either eliminate the conflicting interest or resign with respect to
the Debentures of that series in the manner set forth in this Section.
(d) The Trustee may be removed at any time with respect to the
Debentures of any series by Act of the Holders of at least a majority in
principal amount of the outstanding Debentures of such series, delivered to the
Trustee and to the Company.
(e) If at any time:
(i) the Trustee shall fail to comply with clause (c) of this
Section after written request therefor by the Company or by any Holder
of a Debenture who has been a bona fide Holder of a Debenture for at
least six months, or
(ii) the Trustee shall cease to be eligible under Section
7.07(a) and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent, or a receiver of Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(1) the Company by a Board Resolution may remove the Trustee with
respect to all Debentures, or (2) subject to Section 6.12, any Holder
of a Debenture who has been a bona fide Holder of a Debenture for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Debentures of such series and the
appointment of a successor Trustee or Trustees.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debentures of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Debentures of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debentures of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Debentures of any particular series) and shall comply with
the applicable requirements of Section 7.09. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debentures of any series shall be
appointed by Act of the Holders of at least a majority in principal amount of
the outstanding Debentures of such series, notice of such appointment shall be
delivered to the Company and the retiring Trustee. The successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 7.09, become the successor Trustee
with respect to the Debentures of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Debentures of any series shall have been so appointed by the Company or
the Holders of Debentures and accepted appointment in the manner required by
Section 7.09, any Holder of a Debenture who has been a bona fide Holder of a
Debenture of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Debentures of such
series.
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(g) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debentures of any series and each appointment
of a successor Trustee with respect to the Debentures of any series in the
manner provided in Section 13.02. Each notice shall include the name of the
successor Trustee with respect to the Debentures of such series and the address
of its Corporate Trust Office.
SECTION 7.09 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Debentures, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debentures of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Debentures of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and deeds of the Trustee with respect to the Debentures of that or those
series which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee is not retiring with respect to all Debentures, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Debentures of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (iii) 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 as co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debentures of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debentures of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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SECTION 7.10 SUCCESSOR TRUSTEE BY MERGER.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 8.01 SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Debentures as
specified in such Company Order, and the Trustee, on receipt of a Company Order,
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(a) either
(i) all Debentures of such series theretofore
authenticated and delivered (other than (1) Debentures of such
series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.08, and
(2) Debentures of such series for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 8.04)) have
been delivered to the Trustee for cancellation; or
(ii) all Debentures of such series not theretofore
delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
stated maturity within one year, or
(3) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose, (a) cash (which may be held
in an interest bearing account insured by the Federal Deposit
Insurance Corporation) in an amount, or (b) U.S. Government
Obligations, maturing as to principal and interest at such
times and in such amounts as will ensure the availability of
cash, or (c) a combination thereof, in an amount sufficient to
pay and discharge the entire indebtedness on such Debentures
not theretofore delivered to the Trustee for
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cancellation, including the principal of, and premium, if any,
and interest on such Debentures, to the date of such deposit
(in the case of Debentures which have become due and payable)
or to the Stated Maturity Date or Redemption Date thereof, as
the case may be; and
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the outstanding Debentures of such
series.
In the event there are Debentures of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Debentures of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture, with
respect to any series of Debentures, the obligations of the Company to the
Trustee under Section 7.06 and, if money shall have been deposited with the
Trustee pursuant to clause (a)(ii) of this Section, the following obligations of
the Company and the Trustee with respect to the Debentures of such series, shall
survive: (i) the rights of registration of transfer and exchange of Debentures
of such series, (ii) the replacement of apparently mutilated, defaced,
destroyed, lost or stolen Debentures of such series, (iii) the rights of the
Holders of the Debentures of such series to receive payments of the principal of
and premium, if any, interest on the Debentures of such series, (iv) the rights
of the Holders of the Debentures of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them, (v) the obligation of the Company to maintain an Office or Agency for
payments on and registration of transfer of the Debentures of such series, (vi)
the rights, obligations and immunities of the Trustee hereunder, and (vii) any
rights to convert or exchange the Debentures of such series into other
securities or rights in accordance with their terms.
SECTION 8.02 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF
DEBENTURES.
Subject to Section 8.04, all moneys deposited with the Trustee pursuant
to Section 8.01 shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the Holders of the Debentures of the series for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest, but such money
need not be segregated from other funds except to the extent required by law.
SECTION 8.03 REPAYMENT OF MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under this Indenture shall, upon demand
of the Company, be repaid to it or paid to the Trustee, and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
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SECTION 8.04 RETURN OF MONEYS HELD BY THE TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS.
Any moneys deposited with or paid to the Trustee or any Paying Agent
for the payment of the principal of and premium, if any, or interest on the
Debentures of any series and not applied but remaining unclaimed for two years
after the date when such principal, premium, if any, or interest shall have
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be repaid to the
Company by the Trustee or such Paying Agent, and the Holders of such Debentures
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect as a general unsecured
creditor, and all liability of the Trustee or any Paying Agent with respect to
such moneys shall thereupon cease.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
From time to time, when authorized by a resolution of the Board of
Directors, the Company and the Trustee, without notice to or the consent of any
Holders of the Debentures, may amend or supplement this Indenture:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company contained
herein and in the Debentures; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debentures (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power herein
conferred upon the Company; provided, however, that in respect of any such
additional covenant, or restriction or condition on the Company, 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
(c) to add any additional Events of Default with respect to all or any
series of Debentures (as shall be specified in such supplemental indenture); or
(d) to change or eliminate any of the provisions of this Indenture,
provided, that any such change or elimination shall become effective only when
there is no Debenture outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provision; or
(e) to establish the form or terms of Debentures of any series as
permitted by Section 2.01 or, in lieu of any such supplemental indenture, the
Company may provide the Trustee with an Officers' Certificate with respect to
the form or terms of such Debentures; or
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Debentures of one or more series, and
to add to or change any of the
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provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee; or
(g) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or inconsistent
with any other provision herein or in any supplemental indenture, or to make any
other provisions with respect to matters or questions arising under this
Indenture, which shall not adversely affect the interests of the Holders of
Debentures of any series then outstanding in any material respect; or
(h) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debentures as herein set forth; or
(a) to maintain qualification of this Indenture under the TIA; or
(j) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Debentures provided that any such action shall not
adversely affect the interests of any Holder of a Debenture of such series or
any other Debenture in any material respect.
SECTION 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture in any manner not
permitted by Section 9.01 or may waive future compliance by the Company with any
provisions of this Indenture with the consent of the Holders of at least a
majority in aggregate principal amount of the Debentures of each series affected
thereby then outstanding (and, in the case of any series of Debentures held as
assets of a Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such Trust as may be required under the Trust Agreement
of such Trust). Such an amendment or waiver may not, without the consent of each
Holder of any Debenture affected thereby:
(a) reduce the principal amount of such Debentures;
(b) reduce the percentage of the principal amount of such Debentures
the Holders of which must consent to an amendment of this Indenture or a waiver;
(c) change (i) the stated maturity of the principal of or the interest
on such Debentures, except in connection with any Extension Period, (ii) the
rate of interest (or the manner of calculation thereof) on such Debentures, or
(iii) the duration of the maximum consecutive period that payments of interest
on such Debentures may be deferred;
(d) change adversely to the Holders the redemption, conversion or
exchange provisions applicable to such Debentures, if any;
(e) change the currency in respect of which the payments on such
Debentures are to be made;
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(f) make any change in Article 10 that adversely affects the rights of
the Holders of the Debentures or any change to any other Section hereof that
adversely affects their rights under Article 10; or
(g) change Section 6.07 or 6.08;
provided that, in the case of the outstanding Debentures of a series then held
by a Trust, no such amendment shall be made that adversely affects the holders
of the Preferred Securities of that Trust, and no waiver of any Event of Default
with respect to the Debentures of that series or compliance with any covenant
under this Indenture shall be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation amount of the
outstanding Preferred Securities of that Trust or the holder of each such
Preferred Security, as applicable.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Debentures, or which modifies
the rights of the Holders of Debentures 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 Debentures of any other series.
It shall not be necessary for the consent of the Holders of Debentures
or holders of Preferred Securities under this Section to approve the particular
form of any proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.
If certain Holders agree to defer or waive certain obligations of the
Company hereunder with respect to Debentures held by them, such deferral or
waiver shall not affect the rights of any other Holder to receive the payment or
performance required hereunder in a timely manner.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment or
waiver. Any failure of the Company to mail such notices, or any defect therein,
shall not, however, in any way impair or affect the validity of such amendment
or waiver.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article 9 shall
comply with the TIA.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, waiver or other action by Holders becomes
effective, a consent, waiver or any other action by a Holder of a Debenture
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Debenture or portion of the Debenture that evidences the same obligation as
the consenting Holder's Debenture, even if notation of the consent, waiver or
action is not made on such Debenture. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Debenture or
portion of the Debenture if the Trustee receives the notice of revocation before
the consent of the requisite aggregate principal amount of such Debentures then
outstanding has been obtained and not revoked. After an amendment, waiver or
action becomes effective, it shall bind every Holder of the Debentures of the
related series, except as provided in Section 9.02.
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The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Persons entitled to consent to any amendment or
waiver. If a Record Date is fixed, then, notwithstanding the first two sentences
of the immediately preceding paragraph, only Holders of Debentures or holders of
Preferred Securities, as applicable, on such Record Date or their duly
designated proxies, and only those Persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be such after such Record Date. No such
consent shall be valid or effective for more than 90 days after such Record
Date.
SECTION 9.05 NOTATION ON OR EXCHANGE OF DEBENTURES.
Debentures of the related series authenticated and made available for
delivery after the execution of any supplemental indenture pursuant to this
Article 9 may, and shall, if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debentures so modified to
conform, in the opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and made available for delivery by the Trustee in exchange for
outstanding Debentures.
SECTION 9.06 EXECUTION OF SUPPLEMENTAL INDENTURES.
The Trustee shall execute any supplemental indenture authorized
pursuant to this Article 9 if the supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, execute it. In executing such supplemental
indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and Opinion of Counsel
stating that such supplemental indenture is authorized or permitted by this
Indenture.
SECTION 9.07 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article 9,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes and every Holder
of Debentures of the related series theretofore or thereafter authenticated and
made available for delivery hereunder shall be bound thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01 DEBENTURES SUBORDINATED TO SENIOR INDEBTEDNESS.
Notwithstanding the provisions of Section 6.11 or any other provision
herein or in any Debenture, the Company and the Trustee and, by their acceptance
thereof, the Holders of the Debentures (a) covenant and agree that all payments
by the Company of the principal of and premium, if any, and interest on the
Debentures (other than Debentures which have been discharged pursuant to Article
8) shall be subordinated in accordance with the provisions of this Article 10 to
the prior payment in full, in cash or cash equivalents, of all amounts payable
on, under or in connection with Senior Indebtedness, and (b) acknowledge that
holders of Senior Indebtedness are or shall be relying on this Article 10.
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Nothing herein or in any Debenture is intended to or shall limit the amount of
Senior Indebtedness the Company may incur.
SECTION 10.02 PRIORITY AND PAYMENT OF PROCEEDS IN CERTAIN EVENTS: REMEDIES
STANDSTILL.
(a) Upon any payment or distribution of assets or securities of the
Company, as the case may be, of any kind or character, whether in cash, property
or securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary,
or in bankruptcy, insolvency, receivership or other proceedings, all amounts
payable on, under or in connection with Senior Indebtedness (including any
interest accruing on such Senior Indebtedness subsequent to the commencement of
a bankruptcy, insolvency, receivership or similar proceeding) shall first be
paid in full in cash, or payment provided for in cash or cash equivalents,
before the Holders or the Trustee on behalf of the Holders or the holders of
Preferred Securities shall be entitled to receive from the Company any payment
of principal of or premium, if any, or interest on the Debentures or
distribution of any assets or securities.
(b) No direct or indirect payment by or on behalf of the Company of
principal of or premium, if any, or interest on the Debentures (other than
Debentures which have been discharged pursuant to Article 8), whether pursuant
to the terms of the Debentures or upon acceleration or otherwise, shall be made
if, at the time of such payment, there exists (i) a default in the payment of
all or any portion of any Senior Indebtedness and the Trustee has received
written notice thereof from the Company, from holders of Senior Indebtedness or
from any trustee, representative or agent therefor, or (ii) any other default
affecting Senior Indebtedness as a result of which the maturity of Senior
Indebtedness has been accelerated and the Trustee has received written notice
from the Company, from holders of Senior Indebtedness or from any trustee,
representative or agent therefor, and such default shall not have been cured or
waived by or on behalf of the holders of such Senior Indebtedness.
(c) If, notwithstanding the foregoing provisions prohibiting such
payment or distribution, the Trustee or any Holder shall have received any
payment on account of the principal of or premium, if any, or interest on the
Debentures when such payment is prohibited by this Section and before all
amounts payable on, under or in connection with Senior Indebtedness are paid in
full in cash or cash equivalents, then and in such event (subject to the
provisions of Section 10.08) such payment or distribution shall be received and
held in trust for the holders of Senior Indebtedness and, at the written
direction of the trustee, representative or agent for the holders of the Senior
Indebtedness, shall be paid to the holders of the Senior Indebtedness remaining
unpaid to the extent necessary to pay such Senior Indebtedness in full in cash
or cash equivalents.
Upon any payment or distribution of assets or securities referred to in
this Article 10, the Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, and upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making any such payment or distribution, delivered to the
Trustee for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of 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
10.
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SECTION 10.03 PAYMENTS WHICH MAY BE MADE PRIOR TO NOTICE.
Nothing in this Article 10 or elsewhere in this Indenture shall prevent
(a) the Company, except under the conditions described in Section 10.02, from
making payments of principal of or premium, if any, or interest on the
Debentures or from depositing with the Trustee any monies for such payments, or
(b) the application by the Trustee of any monies deposited with it for the
purpose of making such payments of principal of or premium, if any, or interest
on the Debentures, to the Holders entitled thereto, unless at least one Business
Day prior to the date when such payment would otherwise (except for the
prohibitions contained in Section 10.02) become due and payable, the Trustee
shall have received the written notice provided for in Section 10.02(b)(i) or
(ii).
SECTION 10.04 RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT TO BE IMPAIRED.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time or in any way be
prejudiced or impaired by any act or failure to act in good faith by any such
holder, or by any noncompliance by the Company with the terms and provisions and
covenants herein regardless of any knowledge thereof any such holder may have or
otherwise be charged with.
The provisions of this Article 10 are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior Indebtedness.
Notwithstanding anything to the contrary in this Article 10, to the extent any
Holders or the Trustee have paid over or delivered to any holder of Senior
Indebtedness any payment or distribution received on account of the principal of
or premium, if any, or interest on the Debentures to which any other holder of
Senior Indebtedness shall be entitled to share in accordance with Section 10.02,
no holder of Senior Indebtedness shall have a claim or right against any Holders
or the Trustee with respect to any such payment or distribution or as a result
of the failure to make payments or distributions to such other holder of Senior
Indebtedness.
SECTION 10.05 TRUSTEE MAY TAKE ACTION TO EFFECTUATE SUBORDINATION.
Each Holder of a Debenture, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be required by the
trustee, representative or agent for holders of Senior Indebtedness or by the
Company to effectuate, as between the holders of Senior Indebtedness and the
Holders, the subordination as provided in this Article 10 and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 10.06 SUBROGATION.
Upon the payment in full, in cash or cash equivalents, of all Senior
Indebtedness, any Holder shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of assets of the
Company in respect of such Senior Indebtedness until the Debentures shall be
paid in full; and for the purposes of such subrogation, no payments or
distributions to holders of such Senior Indebtedness of any cash property or
securities to which such Holders of the Debentures would be entitled except for
this Article 10, and no payment pursuant to this Article 10 to holders of such
Senior Indebtedness by such Holders of the Debentures, shall, as between the
Company, its creditors other than holders of such Senior Indebtedness and such
Holders of the Debentures, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness, it being understood that the provisions of
this
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Article 10 are solely for the purpose of defining the relative rights of the
holders of such Senior Indebtedness, on the one hand, and such Holders of the
Debentures, on the other hand.
If any payment or distribution to which Holders of Debentures would
otherwise have been entitled but for the provisions of this Article 10 shall
have been applied, pursuant to this Article 10, to the payment of all Senior
Indebtedness, then and in such case such Holders of the Debentures shall be
entitled to receive from the holders of such Senior Indebtedness at the time
outstanding any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount sufficient to pay, in cash or cash
equivalents, all such Senior Indebtedness in full.
SECTION 10.07 OBLIGATIONS OF COMPANY UNCONDITIONAL; REINSTATEMENT.
Nothing in this Article 10 or elsewhere in this Indenture or in any
Debenture is intended to or shall impair, as between the Company and Holders of
the Debentures, the obligations of the Company, which are absolute and
unconditional, to pay to such Holders the principal of and premium, if any, and
interest on the Debentures as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of such Holders of the Debentures and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or any Holder of Debentures or holder of Preferred
Securities, as applicable, from exercising all remedies otherwise permitted by
applicable law under this Indenture, subject to the rights, if any, under this
Article 10 of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
The failure to make a scheduled payment of principal of or premium, if
any, or interest on the Debentures by reason of Section 10.02 shall not be
construed as preventing the occurrence of a Default or an Event of Default under
Section 6.01; provided, however, that if (a) the conditions preventing the
making of such payment no longer exist, and (b) such Holders of the Debentures
are made whole with respect to such omitted payments, the Default or Event of
Default relating thereto (including any failure to pay any accelerated amounts)
shall be automatically waived, and the provisions of the Indenture shall be
reinstated as if no such Event of Default had occurred.
SECTION 10.08 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE
OF NOTICE.
The Trustee or Paying Agent shall not be charged with the knowledge of
the existence of any default in the payment of all or a portion of any Senior
Indebtedness or any other default affecting Senior Indebtedness as a result of
which the maturity of the Senior Indebtedness has been accelerated, unless and
until the Trustee or Paying Agent shall have received written notice thereof
from the Company or one or more holders of Senior Indebtedness or from any
trustee, representative or agent therefor and, prior to the receipt of any such
written notice, the Trustee or Paying Agent may conclusively assume that no such
facts exist.
Unless at least two Business Days prior to the date when by the terms
of this Indenture any monies are to be deposited by the Company with the
Trustee or any Paying Agent for any purpose (including, without limitation, the
payment of the principal of or premium, if any, or interest on any Debenture),
the Trustee or Paying Agent shall have received with respect to such monies the
notice provided for in Section 10.02,
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the Trustee or Paying Agent shall have full power and authority to receive and
apply such monies to the purpose for which they were received. Neither of them
shall be affected by any notice to the contrary, which may be received by either
on or after such second Business Day. The foregoing shall not apply to the
Paying Agent if the Company is acting as Paying Agent. Nothing in this Section
shall limit the right of the holders of Senior Indebtedness to recover payments
as contemplated by Section 10.02. The Trustee or Paying Agent shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself or itself to be a holder of such Senior Indebtedness (or a trustee,
representative or agent on behalf of such holder) to establish that such notice
has been given by a holder of such Senior Indebtedness or a trustee,
representative or agent on behalf of any such holder. The Trustee shall not be
deemed to have any duty to the holders (and shall be fully protected in relying
upon such notice) of Senior Indebtedness.
SECTION 10.09 RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
The Trustee and any Paying Agent shall be entitled to all of the rights
set forth in this Article 10 in respect of any Senior Indebtedness at any time
held by them to the same extent as any other holder of such Senior Indebtedness,
and nothing in this Indenture shall be construed to deprive the Trustee or any
Paying Agent of any of its rights as such holder.
ARTICLE 11
SINKING FUNDS
SECTION 11.01 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debentures of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Debenture of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Debentures of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Debentures of such series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Debentures of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.02. Each sinking fund payment shall be applied to the
redemption of Debentures of any series as provided for by the terms of
Debentures of such series and this Indenture.
SECTION 11.02 SATISFACTION OF SINKING FUND PAYMENTS WITH DEBENTURES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Debentures of any series to be made pursuant to the
terms of such Debentures (a) deliver outstanding Debentures of such series
(other than any of such Debentures previously called for redemption or any of
such Debentures in respect of which cash shall have been released to the
Company), and (b) apply as a credit Debentures of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
series of Debentures or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debentures, provided that such
series of Debentures have not been previously so credited. Such Debentures shall
be received and credited for such purpose
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<PAGE> 53
by the Trustee at the Redemption Price specified in such Debentures for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Debentures of any series in lieu of cash payments pursuant to this
Section, the principal amount of Debentures of such series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the
Trustee need not call Debentures of such series for redemption, except upon a
Company Order, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment on Debentures of
such series, provided, however, that the Trustee or such Paying Agent shall at
the request of the Company from time to time pay over and deliver to the Company
any cash payment so being held by the Trustee or such Paying Agent upon delivery
by the Company to the Trustee of Debentures of that series purchased by the
Company having an unpaid principal amount equal to the cash payment requested to
be released to the Company.
SECTION 11.03 REDEMPTION OF DEBENTURES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Debentures, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Debentures of that series pursuant to Section 11.02, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Debentures to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Debentures to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.03. Such notice having been duly given, the
redemption of such Debentures shall be made upon the terms and in the manner
stated in Sections 3.04 and 3.06.
ARTICLE 12
MEETINGS OF DEBENTUREHOLDERS
SECTION 12.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Debentures of any series may be called at any
time and from time to time pursuant to this Article 12 to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Debentures of such series.
SECTION 12.02 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Debentures
of any series for any purpose specified in Section 12.01, to be held at such
time and at such place in the Borough of Manhattan, the City of New York, or in
such other place as the Trustee shall determine. Notice of every meeting of
Holders of Debentures of any series, setting forth the time and the place of
such meeting and
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<PAGE> 54
in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 13.02, not less than 20 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
outstanding Debentures of any series shall have requested the Trustee to call a
meeting of the Holders of Debentures of such series for any purpose specified in
Section 12.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Debentures of such series in the amount above
specified, as the case may be, may determine the time and the place for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in clause (a) of this Section.
SECTION 12.03 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Debentures of any
series, a Person shall be (a) a Holder of one or more outstanding Debentures of
such series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more outstanding Debentures of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Debentures of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 12.04 QUORUM; ACTION.
The Persons entitled to vote at least a majority in principal amount of
the outstanding Debentures of a series shall constitute a quorum for a meeting
of Holders of Debentures of such series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the outstanding Debentures of a series, the Persons entitled
to vote such percentage in principal amount of the outstanding Debentures of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Debentures of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 12.02(a), except that such notice need be given
only once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the outstanding Debentures of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of at least a majority in principal amount of the outstanding Debentures of that
series; provided, however, that, except as limited by the proviso to Section
9.02, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other
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<PAGE> 55
action which this Indenture or any supplemental indenture expressly provides may
be made, given or taken by the Holders of a specified percentage in principal
amount of the outstanding Debentures of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the outstanding Debentures of such series.
Any resolution passed or decision taken at any meeting of Holders of
Debentures of any series duly held in accordance with this Section shall be
binding on all the Holders of Debentures of such series, whether or not such
Holders were present or represented at the meeting.
SECTION 12.05 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debentures of a series in regard to proof of the holding of
Debentures of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Debentures shall be proved in the manner specified in Section 1.05 and the
appointment of any proxy shall be proved in the manner specified in Section
1.05. Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 1.05 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debentures as provided in Section 12.02(b), in which
case the Company or the Holders of Debentures of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote at least a majority in principal amount of
the outstanding Debentures of such series represented at the meeting.
(c) At any meeting each Holder of a Debenture of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
outstanding Debentures of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Debenture challenged as not outstanding and ruled by the chairman of the meeting
to be not outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Debenture of such series or proxy.
(d) Any meeting of Holders of Debentures of any series duly called
pursuant to Section 12.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote at least a majority in principal amount
of the outstanding Debentures of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 12.06 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Debentures of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debentures of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the
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<PAGE> 56
outstanding Debentures of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Debentures of any series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 12.02 and, if applicable, Section 12.04.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of Section 318(c) of the TIA, the imposed duties
shall control. The provisions of Sections 310 to 317, inclusive, of the TIA that
impose duties on any Person (including provisions automatically deemed included
in an indenture unless the indenture provides that such provisions are excluded)
are a part of and govern this Indenture, except as, and to the extent, they are
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 13.02 NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing and delivered, telecopied or mailed by
first-class mail, postage prepaid, addressed as follows:
if to the Company:
Hercules Incorporated
Hercules Plaza, 1313 North Market Street
Wilmington, Delaware 19894-0001
Facsimile No.: (302) 594-5210
Attention: Vice President and Treasurer, and Corporate
Secretary
if to the Trustee:
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, PA 19103
Facsimile No.: (215) 972-8372
Attention: Corporate Trust Department
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<PAGE> 57
The Company or the Trustee, by giving notice to the other, may
designate additional or different addresses for subsequent notices of
communications. The Company shall notify the holder, if any, of Senior
Indebtedness of any such additional or different addresses of which the Company
receives notice from the Trustee.
Any notice or communication given to a Debentureholder shall be mailed
or delivered to the Debentureholder at the Debentureholder's address as it
appears on the Register of the Registrar and shall be sufficiently given if
mailed within the time prescribed.
Failure to give a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is given in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company gives a notice or communication to the Debentureholders,
it shall deliver a copy to the Trustee and each Registrar, Paying Agent or
co-Registrar.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Debentureholders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 13.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Debentureholders may communicate pursuant to Section 312(b) of the TIA
with other Debentureholders with respect to their rights under this Indenture or
the Debentures. The Company, the Trustee, the Registrar, the Paying Agent and
anyone else shall have the protection Section 312(c) of the TIA.
SECTION 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (complying with Section 13.05) stating
that, in the opinion of such Officer, all conditions precedent to the taking of
such action have been complied with; and
(b) if applicable, an Opinion of Counsel (complying with Section 13.05)
stating that, in the opinion of such counsel all such conditions precedent to
the taking of such action have been complied with.
SECTION 13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(a) a statement that each Person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
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<PAGE> 58
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such Officers'
Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
matters of fact not involving any legal conclusion, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 13.06 SEVERABILITY CLAUSE.
If any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.07 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.
The Trustee may make reasonable rules for action by or a meeting of
Debentureholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
SECTION 13.08 LEGAL HOLIDAYS.
A "Legal Holiday" is any day other than a Business Day. If any
specified date (including a date for giving notice) is a Legal Holiday, the
action to be taken on such date shall be taken on the next succeeding day that
is not a Legal Holiday, and if such action is a payment in respect of the
Debentures, unless otherwise specified pursuant to Section 2.01 no principal,
premium, if any, or interest shall accrue in respect of such payment for the
intervening period.
SECTION 13.09 GOVERNING LAW.
This Indenture and the Debentures shall be governed by and construed in
accordance with the laws of the State of Delaware, as applied to contracts made
and performed within the State of Delaware, without regard to its principles of
conflicts of laws, except that the rights, limitations of rights, obligations,
duties and immunities of the Trustee shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 13.10 NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligations of the Company under the Debentures
or this Indenture or for any claim based on, in respect of or by reason of such
obligations. By accepting a Debenture, each Debentureholder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issuance and sale of the Debentures.
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SECTION 13.11 SUCCESSORS AND ASSIGNS.
All agreements of the Company in this Indenture and Debentures shall
bind its successors and assigns. All agreements of the Trustee in this Indenture
shall bind its successors and assigns.
SECTION 13.12 COUNTERPARTS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. Any signed copy shall be sufficient proof of this Indenture.
SECTION 13.13 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 13.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.15 HOLDERS OF PREFERRED SECURITIES AS THIRD PARTY BENEFICIARIES.
The Company hereby acknowledges that, to the extent specifically set
forth herein, prior to a Security Exchange with respect to the Debentures of any
series held as assets of a Trust, the holders of the Preferred Securities of
such Trust shall expressly be third party beneficiaries of this Indenture. The
Company further acknowledges that, prior to a Security Exchange with respect to
Debentures of any series held as assets of a Trust, if an Event of Default has
occurred and is continuing and is attributable to (i) the failure of the Company
to pay the principal of or premium, if any, or interest on the Debentures or
(ii) the failure by the Company to deliver the required securities or other
rights upon an appropriate conversion or exchange right election, any holder of
the Preferred Securities of such Trust may institute a Direct Action against the
Company.
SECTION 13.16 BENEFITS OF THE INDENTURE.
Except as otherwise expressly provided herein with respect to holders
of Senior Indebtedness and holders of Preferred Securities, nothing in this
Indenture or in the Debentures, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder and the Holders of
the Debentures, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
[remainder of page intentionally left blank]
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<PAGE> 60
SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective parties hereto as of
the date first above written.
HERCULES INCORPORATED
By:
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
AS TRUSTEE
By:
--------------------------------------
Name:
Title:
54
<PAGE> 61
STATE OF DELAWARE )
: ss.:
COUNTY OF NEWCASTLE )
On the ____ day of _________, ____, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he is
_______________________ of Hercules Incorporated, one of the
corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
---------------------------------
Notary Public
(SEAL)
55
<PAGE> 62
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF PHILADELPHIA )
On the ________ day of _________, ____, before me personally came , to
me known, who, being by me duly sworn, did depose and say that he is a
______________________ of The Chase Manhattan Bank, one of the
corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
---------------------------------
Notary Public
(SEAL)
56
<PAGE> 1
AMENDED AND RESTATED TRUST AGREEMENT
HERCULES TRUST I
Dated as of _________, ____
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.......................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application..................................9
SECTION 2.2 Lists of Holders of Securities....................................9
SECTION 2.3 Reports by the Property Trustee..................................10
SECTION 2.4 Periodic Reports to Property Trustee.............................10
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................10
SECTION 2.6 Events of Default; Waiver........................................10
SECTION 2.7 Event of Default; Notice.........................................12
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.............................................................13
SECTION 3.2 Office...........................................................13
SECTION 3.3 Purpose..........................................................13
SECTION 3.4 Authority........................................................13
SECTION 3.5 Title to Property of the Trust...................................13
SECTION 3.6 Powers and Duties of the Administrative Trustees.................14
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.............16
SECTION 3.8 Powers and Duties of the Property Trustee........................18
SECTION 3.9 Certain Duties and Responsibilities
of the Property Trustee..........................................20
SECTION 3.10 Certain Rights of Property Trustee...............................22
SECTION 3.11 Delaware Trustee.................................................24
SECTION 3.12 Execution of Documents...........................................25
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities.......................................................25
SECTION 3.14 Duration of Trust................................................25
SECTION 3.15 Mergers..........................................................25
i
<PAGE> 3
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities..........................27
SECTION 4.2 Responsibilities of the Sponsor..................................28
SECTION 4.3 Right to Proceed.................................................28
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee....................29
SECTION 5.2 Delaware Trustee.................................................29
SECTION 5.3 Property Trustee; Eligibility....................................30
SECTION 5.4 Certain Qualifications of Administrative Trustees
and Delaware Trustee Generally...................................31
SECTION 5.5 Administrative Trustees..........................................31
SECTION 5.6 Delaware Trustee.................................................31
SECTION 5.7 Appointment, Removal and Resignation of Trustees.................32
SECTION 5.8 Vacancies among Trustees.........................................33
SECTION 5.9 Effect of Vacancies..............................................34
SECTION 5.10 Meetings.........................................................34
SECTION 5.11 Delegation of Power..............................................34
SECTION 5.12 Merger, Conversion, Consolidation or
Succession to Business...........................................35
SECTION 5.13 Compensation.....................................................35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions....................................................35
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities..........................36
SECTION 7.2 Execution and Authentication.....................................36
SECTION 7.3 Form and Dating..................................................37
SECTION 7.4 Registrar and Paying Agent.......................................38
SECTION 7.5 Paying Agent to Hold Money in Trust..............................39
SECTION 7.6 Replacement Securities...........................................39
SECTION 7.7 Outstanding Preferred Securities.................................40
SECTION 7.8 Preferred Securities in Treasury.................................40
SECTION 7.9 Temporary Securities.............................................40
ii
<PAGE> 4
SECTION 7.10 Cancellation.....................................................41
SECTION 7.11 CUSIP Numbers....................................................41
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.............................................42
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities...........................................43
SECTION 9.2 Transfer Procedures and Restrictions.............................43
SECTION 9.3 Deemed Security Holders..........................................46
SECTION 9.4 Book Entry Interests.............................................47
SECTION 9.5 Notices to Clearing Agency.......................................47
SECTION 9.6 Appointment of Successor Clearing Agency.........................47
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1 Liability........................................................48
SECTION 10.2 Exculpation......................................................48
SECTION 10.3 Fiduciary Duty...................................................49
SECTION 10.4 Indemnification..................................................50
SECTION 10.5 Outside Businesses...............................................52
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year......................................................53
SECTION 11.2 Certain Accounting Matters.......................................53
SECTION 11.3 Banking..........................................................54
SECTION 11.4 Withholding......................................................54
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.......................................................54
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent........................................57
iii
<PAGE> 5
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee...............58
SECTION 13.2 Representations and Warranties of Delaware Trustee...............59
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices..........................................................60
SECTION 14.2 Governing Law....................................................61
SECTION 14.3 Intention of the Parties.........................................61
SECTION 14.4 Headings.........................................................62
SECTION 14.5 Successors and Assigns...........................................62
SECTION 14.6 Partial Enforceability...........................................62
SECTION 14.7 Counterparts.....................................................62
iv
<PAGE> 6
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Agreement
310(a)...................................................... 5.3(a)
310(b)...................................................... 5.3(c)
310(c)...................................................... Inapplicable
311(a) and (b).............................................. 5.3(c)
311(c)...................................................... Inapplicable
312(a)...................................................... 2.2(a)
312(b)...................................................... 2.2(b)
313......................................................... 2.3
314(a)...................................................... 2.4
314(b)...................................................... Inapplicable
314(c)...................................................... 2.5
314(d)...................................................... Inapplicable
314(e)...................................................... 1.1, 2.5
314(f)...................................................... Inapplicable
315(a)...................................................... 3.9(b)
315(b)...................................................... 2.7(a)
315(c)...................................................... 3.9(a)
315(d)...................................................... 3.9(b)
316(a) and (b).............................................. 2.6 and Annex I
316(c)...................................................... 3.6(f)
317(a)...................................................... 3.8(c)
317(b)...................................................... 3.8(i)
- ----------
% This Cross-Reference Table does not constitute part of the Agreement and shall
not affect the interpretation of any of its terms or provisions.
i
<PAGE> 7
AMENDED AND RESTATED
TRUST AGREEMENT
OF
HERCULES TRUST I
--------, ----
AMENDED AND RESTATED TRUST AGREEMENT (the "Agreement") dated
and effective as of ________, ____, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (as defined herein) to be issued
pursuant to this Agreement;
WHEREAS, the Trustees and the Sponsor established Hercules Trust I
(the "Trust"), a trust created under the Business Trust Act (as defined herein)
pursuant to a Trust Agreement dated as of September 14, 1998 (the "Original
Agreement"), and a Certificate of Trust filed with the Secretary of State of the
State of Delaware on September 14, 1998, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Debenture Issuer (each as hereinafter defined) and engaging in only those
activities necessary, advisable or incidental thereto;
WHEREAS, the parties hereto desire to amend and restate each and
every term and provision of the Original Agreement; and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust continue as a business trust under the Business Trust Act, that the
Original Agreement be amended and restated in its entirety as provided herein
and that this Agreement constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Agreement and, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
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ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Agreement but not defined in the
preamble above or elsewhere herein have the respective meanings assigned
to them in this Section 1.1;
(b) a term defined anywhere in this Agreement has the same meaning
throughout;
(c) all references to "the Agreement" or "this Agreement" are to
this Agreement and each Annex and Exhibit hereto, as modified,
supplemented or amended from time to time;
(d) all references in this Agreement to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as defined herein)
has the same meaning when used in this Agreement unless otherwise defined
in this Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Administrative Trustee" has the meaning set forth in Section 5.1.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar [or Conversion Agent].
"Agreement" means this Amended and Restated Trust Agreement, dated
as of __________.
"Authorized Officer" of a Person means any other Person that is
authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a Global
Preferred Security Certificate registered in the name of a Clearing Agency or
its nominee, ownership and transfers
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of which shall be maintained and made through book entries by a Clearing Agency
as described in Section 9.4.
"Business Day" means any day other than a Saturday, Sunday or other
day on which banking institutions in The City of New York or Wilmington,
Delaware are authorized or required by law, regulation or executive order to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a global certificate and which shall
undertake to effect book-entry transfers and pledges of the Preferred
Securities.
"Closing Time" means the Closing Time as defined in the Purchase
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if at any time after the
execution of this Agreement such Commission is not existing and performing the
duties now assigned to it under applicable federal securities laws, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in Section 7.1(a).
"Common Securities Guarantee" means the Common Securities Guarantee
Agreement, dated as of ________, _____ of the Sponsor in respect of the Common
Securities.
"Company Indemnified Person" means (a) any Administrative Trustee;
(b) any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee; or (d) any officer, employee or agent of the Trust or
its Affiliates; provided that the term "Company Indemnified Person" shall not
include any Fiduciary Indemnified Person.
"Conversion Agent" has the meaning specified in Section 7.4.
"Corporate Trust Office" means the office of the Property Trustee
for the conduct of corporate trust business at which matters related to this
Agreement shall, at any particular time, be principally administered, which
office at the date of execution of this Agreement is located at One Liberty
Place, 52nd Floor, 1650 Market Street, Philadelphia, Pennsylvania 19103.
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"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Hercules Incorporated, a Delaware
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
"Debentures" means the _________ Junior Subordinated Deferrable
Interest Debentures due ________, ____ of the Debenture Issuer issued pursuant
to the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Default" means an event, act or condition that with notice of lapse
of time, or both, would constitute an Event of Default.
"Definitive Preferred Securities" has the meaning set forth in
Section 7.3(a).
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" means, with respect to the Securities, an Event
of Default (as defined in the Indenture) that has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Preferred Security" has the meaning set forth in Section
7.3(a).
"Holder" means a Person in whose name a Security or Successor
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
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"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of ________, between the
Debenture Issuer and the Debenture Trustee relating to the Debenture Issuer's
junior subordinated debentures [as supplemented by the Supplemental Indenture]
and as [further] amended or supplemented from time to time.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(h).
"Like Amount" has the meaning set forth in Section 3 of Annex I
hereto.
"Liquidation Amount" has the meaning set forth in Section 2 of Annex
I hereto.
"List of Holders" has the meaning set forth in Section 2.2(a) of
Annex I hereto.
"Majority in Liquidation Amount" means, with respect to the
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the Chief Financial Officer,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary. Any Officers' Certificate delivered by
the Trust shall be signed by at least one Administrative Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
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(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Option Closing Date" means the date of closing of any sale of
Additional Securities (as defined in the Purchase Agreement) or, if such term is
not defined in the Purchase Agreement, the date of closing of any sale of
securities to the underwriters named in such Purchase Agreement solely to cover
overallotments.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of the Sponsor, and who shall be reasonably acceptable to the
Property Trustee, provided, that the General Counsel or Assistant General
Counsel of the Sponsor shall be deemed to be reasonably acceptable to the
Trustee.
"Participants" has the meaning specified in Section 7.3(a).
"Paying Agent" has the meaning specified in Section 7.4.
"Payment Amount" has the meaning specified in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in Section 7.1(a).
"Preferred Securities Guarantee" means the Preferred Securities
Guarantee Agreement dated as of ________, of the Sponsor in respect of the
Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Property Trustee" has the meaning set forth in Section 5.3(a).
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
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"Purchase Agreement" means the Purchase Agreement for the offering
and sale of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Administrative Trustees or, if
there are only two Administrative Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee,
any officer within the Corporate Trust Office of the Property Trustee with
direct responsibility for the administration of this Agreement, including any
vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer or other officer of the Corporate Trust Office of the
Property Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Property Trustee to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Securities" or "Trust Securities" means the Common Securities and
the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and
the Preferred Securities Guarantee.
"Sponsor" means Hercules Incorporated, a Delaware corporation, or
any successor entity resulting from any merger, consolidation, amalgamation or
other business combination, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.7(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in Section
3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section
3.15(b)(i)(B).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
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"Tax Event" means the receipt by the Administrative Trustees and the
Debenture Issuer of a reasoned Opinion of Counsel from counsel experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the date of this Agreement, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States Federal income tax with respect to income received or
accrued on the Debentures, (ii) the interest payable by the Debenture Issuer on
the Debentures is not, or within 90 days of the date of such opinion will not
be, deductible by the Debenture Issuer, in whole or in part, for United States
Federal income tax purposes, or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"10% in Liquidation Amount" means, with respect to the Securities,
except as provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holders of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Agreement as a trustee, so long as such Person shall continue as Trustee of the
Trust in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in accordance
with the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Agreement in order for this
Agreement to be qualified under the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide the Property Trustee, unless the Property Trustee is
Registrar for the Securities, (i) within 14 days after each record date for
payment of Distributions, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders of the Securities
("List of Holders") as of such record date, provided that neither the Sponsor
nor the Administrative Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Administrative Trustees on behalf of the Trust, and (ii) at any
other time, within 30 days of receipt by the Trust of a written request for a
List of Holders as of a date no more than 14 days before such List of Holders is
given to the Property Trustee. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
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SECTION 2.3 Reports by the Property Trustee.
Within 60 days after September 1 of each year, commencing September
1, ____, the Property Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent provided for in this Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
aggregate principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under
the Agreement may only be waived by the vote of the Holders of at least
the proportion in aggregate Liquidation Amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
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The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Agreement, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Agreement without any further act, vote, or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture (except where the Holders of
the Common Securities are deemed to have waived such Event of Default
under the Agreement as provided below in this Section 2.6(b)), the Event
of Default under the Agreement shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Agreement as provided below in this
Section 2.6(b), the Event of Default under the Agreement may only be
waived by the vote of the Holders of at least the proportion in aggregate
Liquidation Amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and
such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Agreement and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this Section
2.6(b), upon such waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom shall be deemed
to have been cured for every purpose of this Agreement, but
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no such waiver shall extend to any subsequent or other default or Event of
Default with respect to the Common Securities or impair any right consequent
thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this Agreement.
The foregoing provisions of this Section 2.6(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence
of any default with respect to the Securities, transmit by mail, first class
postage prepaid, to the Holders of the Securities and to the Sponsor, notices of
all such defaults actually known to a Responsible Officer of the Property
Trustee, unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be a Default as defined in the Indenture, not including any periods
of grace provided for therein and irrespective of the giving of any notice
provided therein); provided that, except for (i) a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures or (ii)
any failure by the Company to deliver the required securities or other rights
upon a conversion or exchange election, the Property Trustee shall be protected
in withholding such notice if and so long as a committee of Responsible Officers
of the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have actual
knowledge of any default except:
(i) a default under Sections 6.01(a) and 6.01(b) of the Indenture;
or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the Property
Trustee charged with the administration of the Agreement shall have actual
knowledge.
(c) Within ten Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit notice of such Event of Default to the Holders
of the Preferred Securities, the Administrative Trustees and the Sponsor, unless
such Event of Default shall have been cured, waived or otherwise eliminated. The
Sponsor and the Administrative Trustees shall file annually with the Property
Trustee a certification as to whether or not they are in compliance with all the
conditions and covenants applicable to them under this Agreement.
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ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Hercules Trust I" as such name may be modified
from time to time by the Administrative Trustees following written notice to the
Delaware Trustee, the Property Trustee and the Holders of Securities. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Hercules
Plaza, 1313 North Market Street, Wilmington, Delaware 19894-0001. On ten
Business Days' prior written notice to the Delaware Trustee, the Property
Trustee and the Holders of Securities, the Administrative Trustees may designate
another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities, (b) use the proceeds from the sale of the Securities to
acquire the Debentures in an aggregate principal amount equal to the aggregate
Liquidation Amount of such Securities, and (c) except as otherwise limited
herein, to engage in only those other activities necessary, advisable or
incidental thereto, including without limitation, those activities specified in
Sections 3.6, 3.8, 3.9, 3.10, 3.11 and/or 3.12.
SECTION 3.4 Authority.
Subject to the limitations provided in this Agreement and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by one or more of the Administrative Trustees in accordance with
their powers shall constitute the act of and serve to bind the Trust and an
action taken by the Property Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Agreement.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Trustee Account or as otherwise provided in this Agreement, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
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SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power, duty and
authority, and are hereby authorized and directed, to cause the Trust to engage
in the following activities:
(a) to execute, deliver, issue and sell the Preferred Securities and
the Common Securities in accordance with this Agreement; provided, however, that
(i) the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities, (ii) there shall be no interests in
the Trust other than the Securities, and (iii) the issuance of Securities shall
be limited to a simultaneous issuance of both Preferred Securities and Common
Securities at the Closing Time and the Option Closing Date, if any;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor to be necessary in order to qualify
or register all or part of the Preferred Securities in any State in which
the Sponsor has determined to qualify or register such Preferred
Securities for sale;
(ii) at the direction of the Sponsor, execute and file an
application, prepared by the Sponsor, to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing or quotation of the Preferred Securities;
(iii) execute and deliver letters, documents, or instruments with
DTC and other Clearing Agencies relating to the Preferred Securities;
(iv) if required, execute and file with the Commission a
registration statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, as the case
may be; and
(v) execute and file any agreement, certificate or other document
which such Administrative Trustee deems necessary or appropriate in
connection with the issuance and sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of Common Securities;
(d) to cause the Trust to enter into such agreements and
arrangements as may be necessary or desirable in connection with the sale of
Preferred Securities to the underwriters
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thereof and the consummation thereof, and to take all action, and exercise all
discretion, as may be necessary or desirable in connection with the consummation
thereof;
(e) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Tax Event;
(f) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, [conversions, exchanges] and redemptions, and to
issue relevant notices to the Holders of Preferred Securities and Holders of
Common Securities as to such actions and applicable record dates;
(g) to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of the Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Administrative Trustee;
(l) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, Registrar for
the Securities or to appoint a Paying Agent [or Conversion Agent] for the
Securities as provided in Section 7.4 except for such time as such power to
appoint a Paying Agent [ or Conversion Agent] is vested in the Property Trustee;
(n) to give prompt written notice to the Property Trustee and to
Holders of the Securities of any notice received from the Debenture Issuer of
its election to defer payments of interest on the Debentures by extending the
interest payment period under the Indenture;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which
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such existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for which
the Trust was created;
(p) to take any action (provided that such action does not
materially adversely affect the interests of Holders), not inconsistent with
this Agreement or with applicable law, that the Administrative Trustees
determine in their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.6, including, but not
limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States Federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States Federal income tax purposes;
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Administrative Trustees, on behalf of
the Trust; and
(r) to execute and deliver and record, file or register, as
applicable, all documents, certificates, agreements or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary, advisable or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Administrative Trustees shall not
take any action that is inconsistent with the purposes and functions of the
Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Administrative Trustees pursuant to
this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust and the Trustees (including the Property Trustee and
the Delaware Trustee) shall not, and the Administrative Trustees shall cause the
Trust not to, engage in any activity other than as required or authorized by
this Agreement. In particular, the Trust shall not:
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(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Agreement and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose or
execute any mortgage in respect of, or pledge, any Trust property;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities;
(vii) so long as any Debentures are held by the Property Trustee,
the Trustees shall not (A) direct the time, method and place of conducting
any proceeding with respect to any remedy available to the Debenture
Trustee, or exercise any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (B) waive any past default that is
waivable under the Indenture, (C) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the
Debentures, or (D) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be required,
without, in each case, obtaining (1) the prior approval of the Holders of
a Majority in Liquidation Amount of all outstanding Securities; provided,
however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior approval of each
Holder of Securities and (2) an Opinion of Counsel delivered to the Trust
from tax counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for
United States Federal income tax purposes on account of such action;
(viii) revoke any action previously authorized or approved by a vote
of the Holders of Preferred Securities except by subsequent vote of such
Holders;
(ix) revoke any action previously authorized or approved by a vote
of the Holders of Common Securities except by subsequent vote of such
Holders; or
(x) undertake (or permit to be undertaken) any activity that would
cause the Trust not to be classified for United States Federal income tax
purposes as a grantor trust.
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SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the Trust
and the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 5.7. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
[The Trust and the Property Trustee shall not convert any Debentures
held by either of them except pursuant to a notice of conversion delivered to
the Conversion Agent by a Holder of Securities.]
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made in respect of
the Debentures held by the Property Trustee, deposit such funds into the
Property Trustee Account and make payments or cause the Paying Agent to
make payments to the Holders of the Preferred Securities and Holders of
the Common Securities from the Property Trustee Account in accordance with
Section 6.1. Funds in the Property Trustee Account shall be held
uninvested until disbursed in accordance with this Agreement. The Property
Trustee Account shall be an account that is maintained with a banking
institution the rating on whose long-term unsecured indebtedness is at
least equal to the rating assigned to the Preferred Securities by a
"nationally recognized statistical rating organization", as that term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the
Common Securities to the extent the Debentures are redeemed or mature;
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders of Securities upon
the occurrence of certain events; and
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(iv) take such ministerial action as may be requested by the
Administrative Trustees in connection with the winding up of the affairs
of or liquidation of the Trust in accordance with this Agreement and the
preparation, execution and filing of a certificate of cancellation or
other appropriate certificates with the Secretary of State of the State of
Delaware and other appropriate governmental authorities.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of this Agreement and the Securities.
(e) Subject to Section 3.9, the Property Trustee shall take any
Legal Action which arises out of or in connection with an Event of Default of
which a Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Agreement or the Trust
Indenture Act and, if the Property Trustee shall have failed to take such Legal
Action, the Holders of the Preferred Securities in at least an aggregate
Liquidation Amount equal to the specified percentage of Holders of Debentures
entitled to take such Legal Action may, to the fullest extent permitted by law,
take such Legal Action without first proceeding against the Property Trustee or
the Trust; provided however, that if an Event of Default has occurred and is
continuing and such event is attributable [either] to [(i)] the failure of the
Debenture Issuer to pay the principal of or premium, if any, or interest on the
Debentures on the date such principal, premium, if any, or interest is otherwise
payable (or in the case of redemption, on the redemption date) [or (ii) the
failure by the Sponsor to deliver the required securities upon an appropriate
conversion right election], then a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of or premium, if any, or interest on the Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder on or after the respective due date specified in the
Debentures [or for enforcement of such conversion rights, as the case may be] (a
"Direct Action"). Except as provided in the preceding sentence, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms
of the Securities and this Agreement; or
(ii) a successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7 (a "Successor
Property Trustee").
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Property Trustee occurs and is continuing, the
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Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of the Securities and this Agreement.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent, the
Property Trustee may authorize one or more Persons to act as additional Paying
Agents and to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all Securities and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. Any such additional
Paying Agent may be removed by the Property Trustee at any time the Property
Trustee remains as Paying Agent and a successor Paying Agent or additional
Paying Agents may be (but are not required to be) appointed at any time by the
Property Trustee while the Property Trustee is acting as Paying Agent.
(j) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 3.6.
Notwithstanding anything expressed or implied to the contrary in
this Agreement or any Annex or Exhibit hereto, the Property Trustee must
exercise the powers set forth in this Section 3.8 in a manner that is consistent
with the purposes and functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Agreement and in the Securities and no implied covenants or
obligations shall be read into this Agreement against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, its own bad faith or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
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(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Agreement and
in the Securities and the Property Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement and in the Securities, and
no implied covenants or obligations shall be read into this
Agreement against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property 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 Property
Trustee and conforming to the requirements of this Agreement;
provided, however, that in the case of any such certificates or
opinions that by any provision hereof are specifically required to
be furnished to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Agreement (but shall not be
required to confirm or investigate the accuracy of mathematical
calculations or other facts stated therein);
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a Majority in Liquidation Amount of the
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under this
Agreement;
(iv) no provision of this Agreement shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Agreement or indemnity
reasonably satisfactory to the Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Debentures and the Property
Trustee Account shall be to deal with such property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Agreement and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
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(vii) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree in writing with
the Sponsor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Trustee
Account maintained by the Property Trustee pursuant to Section 3.8(c)(i)
and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Sponsor with their
respective duties under this Agreement, nor shall the Property Trustee be
liable for any default or misconduct of the Administrative Trustees or the
Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Agreement may be sufficiently evidenced by
an Officers' Certificate;
(iii) whenever in the administration of this Agreement, the Property
Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any re-recording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other experts
of its selection and the advice or opinion of such counsel and experts
with respect to legal matters or advice within the scope of such experts'
area of expertise shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion, such counsel may
be counsel to the Sponsor or any of its Affiliates, and may include any of
its employees; and the Property Trustee shall have the right at any time
to seek instructions
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concerning the administration of this Agreement from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement at the request
or direction of any Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including reasonable
attorneys' fees and expenses and the expenses of the Property Trustee's
agents, nominees or custodians) and liabilities that might be incurred by
it in complying with such request or direction, including such reasonable
advances as may be requested by the Property Trustee in respect of the
time, method or place of conducting any proceeding for any remedy
available to the Property Trustee or the exercise of any trustor power
conferred on the Property Trustee under this Agreement;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys and the Property Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient
and effective to perform any such action and no third party shall be
required to inquire as to the authority of the Property Trustee to so act
or as to its compliance with any of the terms and provisions of this
Agreement, both of which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Property Trustee (i) may request instructions from the Holders of the
Securities which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Securities as would be entitled to
direct the Property Trustee under the terms of the Securities in respect
of such remedy, right or action, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on, or
acting in accordance with, such instructions;
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(xi) except as otherwise expressly provided by this Agreement, the
Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Agreement; and
(xii) the Property Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without negligence,
and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement.
(b) No provision of this Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
(c) It is expressly understood and agreed by the parties hereto that
in fulfilling its obligations as Property Trustee hereunder on behalf of the
Trust, (i) any agreements or instruments executed or delivered by The Chase
Manhattan Bank are executed and delivered not in its individual capacity but
solely as Property Trustee under this Agreement in the exercise of the powers
and authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as representations, warranties, covenants, undertakings and
agreements by The Chase Manhattan Bank in its individual capacity but is made
and intended for the purpose of binding only the Trust, and (iii) under no
circumstances (except with respect to funds delivered to it relating to payments
in respect of the Securities) shall The Chase Manhattan Bank in its individual
capacity be personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Agreement except if such breach or failure is due to any negligence, bad faith
or willful misconduct of the Property Trustee.
SECTION 3.11 Delaware Trustee.
(a) Notwithstanding any other provision of this Agreement other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Administrative Trustees or the Property Trustee described in this Agreement
(except as required under the Business Trust Act). Except as set forth in
Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Business Trust
Act.
(b) It is expressly understood and agreed by the parties hereto that
in fulfilling its obligations as Delaware Trustee hereunder on behalf of the
Trust, (i) any agreements or instruments executed or delivered by Chase
Manhattan Bank Delaware are executed and
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delivered not in its individual capacity but solely as Delaware Trustee under
this Agreement in the exercise of the powers and authority conferred and vested
in it, (ii) each of the representations, undertakings and agreements herein made
on the part of the Trust is made and intended not as representations,
warranties, covenants, undertakings and agreements by Chase Manhattan Bank
Delaware in its individual capacity but is made and intended for the purpose of
binding only the Trust, and (iii) under no circumstances shall Chase Manhattan
Bank Delaware in its individual capacity be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or failure
of any obligation, representation, warranty, or covenant made or undertaken by
the Trust under this Agreement except if such breach or failure is due to any
negligence, bad faith or willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or applicable
law, each Administrative Trustee, individually, is authorized to execute and
deliver on behalf of the Trust any documents, agreements, instruments or
certificates that the Administrative Trustees have the power and authority to
execute and deliver pursuant to this Agreement.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Agreement and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Agreement or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions of Article
VIII hereof, shall have existence until [35 years from execution].
SECTION 3.15 Mergers.
(a) The Trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person, except as
described in Section 3.15(b) and (c) and except with respect to the distribution
of all Debentures to Holders of Securities pursuant to Section 8.1(a)(iii).
(b) The Trust may, at the request of the Sponsor, with the consent
of the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, merge with or into,
convert into, consolidate, amalgamate, or be replaced by, or convey,
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transfer or lease its properties and assets as an entirety or substantially as
an entirety to, a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities") so long as the Successor Securities rank the same as
the Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the Successor
Entity that possesses the same powers and duties as the Property Trustee
with respect to the Debentures;
(iii) the Successor Securities (excluding any securities substituted
for any Common Securities) are listed, quoted or included for trading, or
any Successor Securities will be listed, quoted or included for trading,
upon notification of issuance, on any national securities exchange or with
any other organization on which the Preferred Securities are then listed,
quoted or included;
(iv) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) or the Debentures to be
downgraded or placed under surveillance or review by any nationally
recognized statistical rating organization that publishes a rating on the
Preferred Securities or the Debentures;
(v) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Securities
(including the holders of any Successor Securities) in any material
respect (other than with respect to any dilution of the interests of such
Holders or holders, as the case may be, in the Successor Entity);
(vi) the Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received an
opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
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(A) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of the
Securities (including the holders of any Successor Securities) in
any material respect (other than with respect to any dilution of the
interests of such Holders or holders, as the case may be, in the
Successor Entity); and
(B) following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor the Successor Entity, if any, will be required to
register as an Investment Company; and
(viii) the Sponsor or any permitted successor or assignee owns all
of the common securities of the Successor Entity and guarantees the
obligations of the Successor Entity under the Successor Securities at
least to the extent provided by the Preferred Securities Guarantee and the
Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in Liquidation Amount of the Securities,
merge with or into, convert into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to, any other Person or permit any other Person to
merge with or into, consolidate, amalgamate, or replace it if such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease would cause the Trust or the Successor Entity, if any, not to be
classified as a grantor trust for United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time and on any Option Closing Date, the Sponsor will
purchase all of the Common Securities then issued by the Trust, in an amount
equal to at least 3% of the total capital of the Trust, at the same time as the
Preferred Securities are issued and sold. The aggregate Liquidation Amount of
Common Securities at any time shall not be less than 3% of the total capital of
the Trust.
For so long as the Preferred Securities remain outstanding, the
Sponsor covenants (i) to maintain, directly or indirectly, 100% ownership of the
Common Securities; provided, however, that any permitted successor of the
Sponsor under the Indenture may succeed to the Sponsor's interest in the Common
Securities, (ii) to use its best efforts to cause the Trust (a) to remain a
business trust, except in connection with a distribution of Debentures to the
Holders of Securities in liquidation of the Trust, the [conversion, exchange or]
redemption of all the Securities, or certain mergers, consolidations or
amalgamations, each as permitted by this
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Agreement, and not to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by this Agreement, and (b) to otherwise continue to be
classified as a grantor trust for United States federal income tax purposes,
(iii) to use its best efforts to ensure that the Trust shall not be an
Investment Company for purposes of the Investment Company Act, (iv) to use its
best efforts to cause each Holder of Securities to be treated as owning an
undivided beneficial interest in the Debentures and (v) to take no action which
would cause the dissolution, liquidation or winding up of the Trust, except as
otherwise provided in this Agreement.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust, execute and file with the
Commission the registration statement on Form S-3 pertaining to the Preferred
Securities, including any amendments thereto and to register the Preferred
Securities Guarantee related thereto;
(b) to determine the jurisdictions in which to take appropriate
action to qualify or register for sale all or part of the Preferred Securities
and to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such jurisdictions;
(c) if deemed necessary or advisable by the Sponsor, to prepare for
filing by the Trust an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing or quotation
of the Preferred Securities;
(d) to prepare for filing by the Trust, execute and file with the
Commission a registration statement on Form 8-A, including any amendments
thereto, relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, as the case may be, including any amendments
thereto; and
(e) to negotiate the terms of, execute, enter into and deliver the
Purchase Agreement providing for the sale of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of Preferred
Securities to bring one or more Direct Actions under the circumstances specified
in this Agreement.
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ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities;
provided, however, that, the number of Trustees shall in no event be less than
two (2); provided further that (1) one Trustee shall be a Person meeting the
requirements of Section 5.2 (the "Delaware Trustee"); (2) there shall be at
least one Trustee who is an employee or officer of, or is affiliated with the
Sponsor (an "Administrative Trustee"); and (3) one Trustee shall be the Property
Trustee for so long as this Agreement is required to qualify as an indenture
under the Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements. Notwithstanding the above,
unless an Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust's property may at the
time be located, the Holders of a Majority in Liquidation Amount of the Common
Securities acting as a class at a meeting of the Holders of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more Persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of the Trust's property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of this Agreement. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
For so long as required by the Business Trust Act, the Delaware
Trustee shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided, however, if the Property Trustee has its principal
place of business in the State of Delaware and
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otherwise meets the requirements of applicable law, then the Property Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the "Property Trustee")
which shall act as Property Trustee and which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an indenture trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising
or examining authority referred to above, then for the purposes of this
Section 5.3(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Agreement for purposes of clause (i) of the first
provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
Telecopier: (215) 988-8372
Telephone: (215) 988-1329
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SECTION 5.4 Certain Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
SECTION 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
Israel J. Floyd
Jan M. King
Stuart C. Shears
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Telephone: (302) 594-5000
Telecopier: (302) 594-5210
(a) Except as expressly set forth in this Agreement and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Administrative Trustee acting alone is authorized to execute on behalf of the
Trust any documents which the Administrative Trustees have the power and
authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Department
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Telecopier: (302) 984-4903
Telephone: (302) 428-3372
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be
continuing after the issuance of any Securities, by vote of the Holders of
a Majority in Liquidation Amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities; and
(iii) if an Event of Default shall have occurred and be continuing
after the issuance of the Securities, with respect to the Property Trustee
or the Delaware Trustee, by vote of Holders of a Majority in Liquidation
Amount of the Preferred Securities voting as a class at a meeting of
Holders of the Preferred Securities (it being understood that in no event
will the Holders of the Preferred Securities have the right to vote,
appoint, remove or replace the Administrative Trustees, which voting
rights are exclusively vested in the Holder of the Common Securities).
(b) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.7(a) until a Successor Property Trustee has
been appointed and has accepted such appointment by written instrument
executed by such Successor Property Trustee and delivered to the
Administrative Trustees and the Sponsor; and
(c) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with Section 5.7(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the removed Delaware Trustee, the Property Trustee (if the
removed Delaware Trustee is not also the Property Trustee), the Administrative
Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the other Trustees, the Sponsor and the Trust, which resignation shall take
effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
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(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed and
has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the Sponsor,
the Delaware Trustee (if the resigning Property Trustee is not also
the Delaware Trustee) and the resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the Holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Property
Trustee (if the resigning Delaware Trustee is not also the Property
Trustee), the Sponsor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities or, if an Event of Default
shall have occurred and be continuing after the issuance of the Securities, the
Holders of the Preferred Securities shall use their best efforts to promptly
appoint a Successor Delaware Trustee or Successor Property Trustee, as the case
may be, if the Property Trustee or the Delaware Trustee delivers an instrument
of resignation in accordance with this Section 5.7.
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.7 within 60 days after delivery of an instrument of resignation or removal,
the Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
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SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust or to
terminate this Agreement. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 5.7, the Administrative
Trustees in office, regardless of their number, shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Agreement.
SECTION 5.10 Meetings.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Agreement, any action of the Administrative Trustees
may be taken at a meeting by vote of a majority of the Administrative Trustees
present (whether in person or by telephone) and eligible to vote with respect to
such matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Administrative Trustees. In the event there is
only one Administrative Trustee, any and all action of such Administrative
Trustee shall be evidenced by a written consent of such Administrative Trustee.
SECTION 5.11 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or
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otherwise as the Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the provisions of
this Agreement.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee or any
Administrative Trustee that is not a natural person, as the case may be, may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee, as the case may be, shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
the Property Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the case may be,
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, such successor shall
notify the Sponsor and the Trust promptly of its succession.
SECTION 5.13 Compensation.
The Sponsor agrees:
(a) to pay to the Property Trustee and the Delaware Trustee from
time to time such compensation as shall be agreed in writing between the Company
and the Property Trustee and the Delaware Trustee, respectively, for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust); and
(b) to reimburse the Property Trustee and the Delaware Trustee upon
their request for reasonable expenses, disbursements and advances incurred or
made by the Property Trustee or the Delaware Trustee, respectively, in
accordance with any provision of this Agreement (including the reasonable
compensation and the expenses and advances of its agents and counsel), except
any such expense or advance as may be attributable to their negligence, willful
misconduct or bad faith.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. Distributions shall be
made on the Preferred Securities and the Common Securities in accordance with
the respective terms and preferences set forth herein and in Annex I. If and to
the extent that the Debenture Issuer makes a payment of interest (including
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any compounded interest and additional interest), premium and/or principal on
the Debentures held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed, to the
extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall on behalf of the Trust issue
one class of preferred securities representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Annex I (the
"Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities"). The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Agreement,
the Securities so issued shall be validly issued, fully paid and non-assessable.
(d) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Agreement, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Agreement.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by an
Administrative Trustee. In case any Administrative Trustee of the Trust who
shall have signed any of the Securities shall cease to be such Administrative
Trustee before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the Person who signed such
Securities had not ceased to be such Administrative Trustee; and any Securities
may be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Administrative Trustees of the Trust,
although at the date of the execution and delivery of this Agreement any such
person was not an Administrative Trustee.
(b) One Administrative Trustee shall sign the Preferred Securities
for the Trust by manual or facsimile signature.
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A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Agreement. A Common Security shall be valid upon
execution by an Administrative Trustee without any act of the Property Trustee.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Preferred Securities for
original issue.
The aggregate number of Preferred Securities outstanding at any time
shall not exceed the number set forth in the terms in Annex I hereto except as
provided in Section 7.6.
The Property Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so. Each
reference in this Agreement to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee hereunder with respect to the Sponsor or an Affiliate.
SECTION 7.3 Form and Dating.
The Preferred Securities and the Property Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which is
hereby incorporated in and expressly made a part of this Agreement. The
Securities may be in definitive or global form and may be printed, lithographed
or engraved or may be produced in any other manner as is reasonably acceptable
to an Administrative Trustee, as evidenced by the execution thereof. The
Securities may have letters, CUSIP or other numbers, notations or other marks of
identification or designation and such legends or endorsements required by law,
stock exchange or quotation system rule, agreements to which the Trust is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Trust). An Administrative Trustee, at
the direction of the Sponsor, shall furnish any such legend not contained in
Exhibits A-1 or A-2 to the Property Trustee in writing. Each Preferred Security
shall be dated the date of its authentication. The terms and provisions of the
Securities set forth in Annex I and the forms of Securities set forth in
Exhibits A-1 and A-2 are part of the terms of this Agreement and to the extent
applicable, the Property Trustee and the Sponsor, by their execution and
delivery of this Agreement, expressly agree to such terms and provisions and to
be bound thereby.
The following four paragraphs shall apply only to any Global
Preferred Securities:
The Preferred Securities shall be issued in the form of one or more
permanent global Securities in definitive, fully registered form without
Distribution coupons with the appropriate global legends set forth in Exhibit
A-1 hereto (a "Global Preferred Security"), which shall be deposited on behalf
of the purchasers of the Preferred Securities represented thereby
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with the Property Trustee, as custodian for the Clearing Agency, and registered
in the name of the Clearing Agency or a nominee of the Clearing Agency, duly
executed by the Trust and authenticated by the Property Trustee as hereinafter
provided. The number of Preferred Securities represented by the Global Preferred
Security may from time to time be increased or decreased by adjustments made on
the records of the Property Trustee and the Clearing Agency or its nominee as
hereinafter provided. The Holder of a Global Preferred Security may grant
proxies and otherwise authorize any Person, including Participants and Persons
that may hold interests through Participants, to take any action which such
Holder is entitled to take under this Agreement or the Securities.
An Administrative Trustee shall execute and the Property Trustee
shall, in accordance with this Section 7.3, authenticate and make available for
delivery initially one or more Global Preferred Securities that (i) shall be
registered in the name of Cede & Co. or other nominee of such Clearing Agency
and (ii) shall be delivered by the Property Trustee to such Clearing Agency or
pursuant to such Clearing Agency's written instructions or held by the Property
Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency ("Participants")
shall have no rights under this Agreement with respect to any Global Preferred
Security held on their behalf by the Clearing Agency or by the Property Trustee
as the custodian of the Clearing Agency or under such Global Preferred Security,
and the Clearing Agency may be treated by the Trust, the Property Trustee and
any agent of the Trust or the Property Trustee as the absolute owner of such
Global Preferred Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trust, the Property Trustee or any
agent of the Trust or the Property Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Clearing Agency or
impair, as between the Clearing Agency and its Participants, the operation of
customary practices of such Clearing Agency governing the exercise of the rights
of a holder of a beneficial interest in any Global Preferred Security.
Except as provided in Section 9.2, owners of beneficial interests in
a Global Preferred Security will not be entitled to receive physical delivery of
Preferred Securities in definitive form ("Definitive Preferred Securities").
SECTION 7.4 Registrar and Paying Agent.
The Trust shall maintain in the Borough of Manhattan, The City of
New York, (i) an office or agency where Preferred Securities may be presented
for registration of transfer ("Registrar") and (ii) an office or agency where
Preferred Securities may be presented for payment ("Paying Agent") [ and (iii)
an office or agency where Preferred Securities may be presented for conversion
or exchange ("Conversion Agent")]. The Registrar shall keep a register of the
Preferred Securities and of their transfer. The Trust may appoint the Registrar
and the Paying Agent [and the Conversion Agent] and may appoint one or more
co-registrars and one or more additional paying agents [and conversion agents]
in such other locations as it shall determine. The term "Registrar" includes any
additional registrar and the term "Paying Agent"
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includes any additional paying agent [and the term "Conversion Agent" includes
any additional conversion agent]. The Trust may change any Registrar or Paying
Agent [or Conversion Agent] without prior notice to any Holder. The
Administrative Trustees shall notify the Property Trustee of the name and
address of any Agent not a party to this Agreement. If the Trust fails to
appoint or maintain another entity as Registrar or Paying Agent [or Conversion
Agent], the Property Trustee shall act as such, and as Paying Agent the Property
Trusteee shall have the rights set forth in Section 3.8(i). The Trust or any of
its Affiliates may act as Registrar or Paying Agent [or Conversion Agent]. The
Trust shall act as Registrar and Paying Agent [and Conversion Agent] for the
Common Securities.
Any Paying Agent shall be permitted to resign as Paying Agent upon
30 days' prior written notice to the Property Trustee, the Administrative
Trustees and the Sponsor. In the event that the Property Trustee shall no longer
be the Paying Agent, the Trust shall appoint a successor Paying Agent (which
shall be a bank or trust company acceptable to the Sponsor) to act as Paying
Agent.
The Trust initially appoints the Property Trustee as Registrar and
Paying Agent [and Conversion Agent] for the Preferred Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of liquidation amounts or Distributions on the Securities and
will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee. The
Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment over
to the Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the money. If the
Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If a Holder of a Security claims that a Security owned by it has
been lost, destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or, in the case of the Preferred Securities, to the
Property Trustee, an Administrative Trustee shall execute and the Property
Trustee shall authenticate and make available for delivery a replacement
Security if the Property Trustee's and the Trust's requirements, as the case may
be, are met. An indemnity bond must be provided by the Holder which, in the
judgment of the Property Trustee, is sufficient to protect the Trustees, the
Sponsor or any authenticating agent
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from any loss which any of them may suffer if a Security is replaced. The Trust
may charge such Holder for its expenses in replacing a Security.
Every replacement Security is an additional beneficial interest in
the Trust.
SECTION 7.7 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the
Preferred Securities authenticated by the Property Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Preferred Security is replaced, paid or purchased pursuant to
Section 7.6 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased Preferred
Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with the
terms of this Agreement, they cease to be outstanding and Distributions thereon
shall cease to accumulate.
A Preferred Security does not cease to be outstanding because the
Trust, the Sponsor or an Affiliate of the Sponsor holds such Preferred Security.
SECTION 7.8 Preferred Securities in Treasury.
In determining whether the Holders of the required amount of
Preferred Securities have concurred in any direction, waiver or consent,
Preferred Securities owned by the Trust, the Sponsor or an Affiliate of the
Sponsor, as the case may be, shall be disregarded and deemed not to be
outstanding, except that for the purposes of determining whether the Property
Trustee shall be fully protected in relying on any such direction, waiver or
consent, only Preferred Securities which a Responsible Officer of the Property
Trustee actually knows are so owned shall be so disregarded.
SECTION 7.9 Temporary Securities.
Until Definitive Securities are ready for delivery, the Administrative Trustees
may prepare and, in the case of the Preferred Securities, the Property Trustee
shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations that
the Trust considers appropriate for temporary Securities. Without unreasonable
delay, the Administrative Trustees shall prepare and, in the case of the
Preferred Securities, the Property Trustee shall authenticate Definitive
Securities in exchange for temporary Securities.
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SECTION 7.10 Cancellation.
The Trust at any time may deliver Preferred Securities to the
Property Trustee for cancellation. The Registrar and Paying Agent shall forward
to the Property Trustee any Preferred Securities surrendered to them for
registration of transfer, redemption, exchange [, conversion] or payment. The
Property Trustee shall promptly cancel all Preferred Securities surrendered for
registration of transfer, redemption, exchange, payment, replacement [,
conversion] or cancellation and shall dispose of cancelled Preferred Securities
as the Trust directs, provided that the Property Trustee shall not be obligated
to destroy Preferred Securities. The Trust may not issue new Preferred
Securities to replace Preferred Securities that it has paid or redeemed or that
have been delivered to the Property Trustee for cancellation or that any Holder
has exchanged [or converted].
SECTION 7.11 CUSIP Numbers.
The Trust, in issuing the Preferred Securities, may use
"CUSIP" numbers (if then generally in use), and, if so, the Property Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders
of Preferred Securities; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Preferred Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Preferred Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Sponsor will promptly notify the
Property Trustee of any change in the CUSIP numbers.
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ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall automatically dissolve upon the first to
occur of the following events:
(i) the bankruptcy of the Sponsor;
(ii) (A) the filing of a certificate of dissolution or
liquidation or its equivalent with respect to the Sponsor or (B) the
revocation of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) the distribution of a Like Amount of the Debentures
to the Holders of the Securities, provided that the Property Trustee
has received written notice from the Sponsor directing the Property
Trustee to dissolve the Trust (which direction is optional and, except
as otherwise expressly provided herein, within the discretion of the
Sponsor), and provided, further, that such dissolution is conditioned
on the receipt by the Administrative Trustees' receipt of an opinion of
an independent tax counsel experienced in such matters (a "No
Recognition Opinion") to the effect that the Holders of the Securities
will not recognize any gain or loss for United States Federal income
tax purposes as a result of the dissolution of the Trust and the
distribution of the Debentures;
(iv) the entry of a decree of judicial dissolution of the
Trust by a court of competent jurisdiction;
(v) the [conversion, exchange or] redemption of all of the
Securities and the payment to the Holders of any and all amounts
necessary therefor, all in accordance with the terms of the Securities;
or
(vi) the expiration of the term of the Trust provided in
Section 3.14.
(b) As soon as is practicable upon completion of winding up of
the Trust following the occurrence of an event referred to in Section 8.1(a),
the Administrative Trustees shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in accordance
with the Business Trust Act.
(c) The provisions of Section 3.9 and Article X shall survive
the termination of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Agreement and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Agreement shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) To the fullest extent permitted by law, the Sponsor may
not transfer the Common Securities except for any transfer (whether voluntarily
or by operation of law) permitted under Article 5 of the Indenture.
(d) The Administrative Trustees shall provide for the
registration of Securities and of the transfer of Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Administrative Trustees may require) in respect of any tax or other governmental
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Securities, the Administrative Trustees shall cause one or
more new Securities to be issued in the name of the designated transferee or
transferees. Every Security surrendered for registration of transfer or exchange
[or for conversion,] shall be accompanied by a written instrument of transfer in
form satisfactory to the Administrative Trustees duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Security surrendered for
registration of transfer [or for conversion,] shall be canceled by the
Administrative Trustees. A transferee of a Security shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Security. By acceptance of a Security, each transferee
shall be deemed to have agreed to be bound by this Agreement.
SECTION 9.2 Transfer Procedures and Restrictions
(a) Transfer and Exchange of Definitive Preferred Securities.
When Definitive Preferred Securities are presented to the Registrar:
(x) to register the transfer of such Definitive Preferred
Securities; or
(y) to exchange such Definitive Preferred Securities which
became mutilated, destroyed, defaced, stolen or lost, for an equal
liquidation amount of Definitive Preferred Securities,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Preferred Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a
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written instrument of transfer in form reasonably satisfactory to the Property
Trustee and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(b) Transfer of a Definitive Preferred Security for a
Beneficial Interest in a Global Preferred Security. Upon receipt by the Property
Trustee of a Definitive Preferred Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Property
Trustee, together with written instructions directing the Property Trustee to
make, or to direct the Clearing Agency to make, an adjustment on its books and
records with respect to the Global Preferred Security to reflect an increase in
the Liquidation Amount of the Preferred Securities represented by such Global
Preferred Security, then the Property Trustee shall cancel such Definitive
Preferred Security and cause, or direct the Clearing Agency to cause, the
aggregate Liquidation Amount of Preferred Securities represented by the
appropriate Global Preferred Security to be increased accordingly. If no Global
Preferred Securities are then outstanding, an Administrative Trustee shall
execute on behalf of the Trust and the Property Trustee shall authenticate, upon
written order of any Administrative Trustee, a Global Preferred Security
representing an appropriate Liquidation Amount of Preferred Securities.
(c) Transfer and Exchange of Global Preferred Securities.
Subject to Section 9.2(d), the transfer and exchange of Global Preferred
Securities or beneficial interests therein shall be effected through the
Clearing Agency in accordance with this Agreement and the procedures of the
Clearing Agency therefor.
(d) Transfer of a Beneficial Interest in a Global Preferred
Security for a Definitive Preferred Security.
(i) A Global Preferred Security deposited with the Clearing
Agency or with the Property Trustee as custodian for the Clearing
Agency pursuant to Section 7.3 shall be transferred to the beneficial
owners thereof in the form of Definitive Preferred Securities only if
such transfer complies with Section 9.2(c) and (1) the Clearing Agency
notifies the Trust that it is unwilling or unable to continue as
Clearing Agency for such Global Preferred Security or if at any time
such Clearing Agency ceases to be a "clearing agency" registered under
the Exchange Act and, in each case, a clearing agency is not appointed
by the Sponsor within 90 days of receipt of such notice or of becoming
aware of such condition, (2) a Default or an Event of Default has
occurred and is continuing or (3) the Trust at its sole discretion
elects to cause the issuance of Definitive Preferred Securities.
(ii) Any Global Preferred Security that is transferable to the
beneficial owners thereof in the form of Definitive Preferred
Securities pursuant to this Section 9.2(d) shall be surrendered by the
Clearing Agency to the Property Trustee located in the Borough of
Manhattan, The City of New York, to be so transferred, in whole or from
time to time in part, without charge, and the Property Trustee shall
authenticate and make available for delivery, upon such transfer of
each portion of such Global Preferred Security, an equal aggregate
Liquidation Amount of Securities of authorized denominations in the
form of
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Definitive Preferred Securities. Any portion of a Global Preferred
Security transferred pursuant to this Section shall be registered in
such names as the Clearing Agency shall direct.
In the event of the occurrence of any of the events specified in clause
(i) above, the Administrative Trustees will promptly make available to the
Property Trustee a reasonable supply of Definitive Preferred Securities in fully
registered form without Distribution coupons.
(e) Restrictions on Transfer and Exchange of Global Preferred
Securities. Notwithstanding any other provisions of this Agreement (other than
the provisions set forth in subsection (d) of this Section 9.2), a Global
Preferred Security may not be transferred as a whole except by the Clearing
Agency to a nominee of the Clearing Agency or another nominee of the Clearing
Agency or by the Clearing Agency or any such nominee to a successor Clearing
Agency or a nominee of such successor Clearing Agency.
(f) Cancellation or Adjustment of Global Preferred Security.
At such time as all beneficial interests in a Global Preferred Security have
either been exchanged for Definitive Preferred Securities to the extent
permitted by this Agreement or redeemed, repurchased [, converted or otherwise
exchanged] or canceled in accordance with the terms of this Agreement, such
Global Preferred Security shall be returned to the Clearing Agency for
cancellation or retained and canceled by the Property Trustee. At any time prior
to such cancellation, if any beneficial interest in a Global Preferred Security
is exchanged for Definitive Preferred Securities, Preferred Securities
represented by such Global Preferred Security shall be reduced and an adjustment
shall be made on the books and records of the Property Trustee (if it is then
the custodian for such Global Preferred Security) with respect to such Global
Preferred Security, by the Property Trustee or the Securities Custodian, to
reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Preferred Securities.
(i) To permit registrations of transfers and exchanges, an
Administrative Trustee shall execute and the Property Trustee shall
authenticate Definitive Preferred Securities and Global Preferred
Securities at the Registrar's request in accordance with the terms of
this Agreement.
(ii) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as the Trust
or the Sponsor may require) in respect of any tax or other governmental
charge that may be imposed in relation to it.
(iii) The Registrar shall not be required to register the
transfer of or exchange of (a) Preferred Securities during a period
beginning at the opening of business 15 days before the day of mailing
of a notice of redemption or any notice of selection of Preferred
Securities for redemption and ending at the close of business on the
day of such mailing; or (b) any Preferred Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Preferred Security being redeemed in part.
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(iv) All Preferred Securities issued upon any registration of
transfer or exchange pursuant to the terms of this Agreement shall
evidence the same security and shall be entitled to the same benefits
under this Agreement as the Preferred Securities surrendered upon such
registration of transfer or exchange.
(h) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Preferred Security, a
Participant in the Clearing Agency or other Person with respect to the
accuracy of the records of the Clearing Agency or its nominee or of any
Participant thereof, with respect to any ownership interest in the
Preferred Securities or with respect to the delivery to any
Participant, beneficial owner or other Person (other than the Clearing
Agency) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Preferred
Securities. All notices and communications to be given to the Holders
and all payments to be made to Holders under the Preferred Securities
shall be given or made only to or upon the order of the Holders (which
shall be the Clearing Agency or its nominee in the case of a Global
Preferred Security). The rights of beneficial owners in any Global
Preferred Security shall be exercised only through the Clearing Agency
subject to the applicable rules and procedures of the Clearing Agency.
The Property Trustee may conclusively rely and shall be fully protected
in relying upon information furnished by the Clearing Agency or any
agent thereof with respect to its Participants and any beneficial
owners.
(ii) The Property Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Agreement or under
applicable law with respect to any transfer of any interest in any
Preferred Security (including any transfers between or among Clearing
Agency Participants or beneficial owners in any Global Preferred
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Agreement, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
SECTION 9.3 Deemed Security Holders.
The Trust, the Trustees, the Registrar and the Paying Agent
may treat the Person in whose name any Security shall be registered on the books
and records of the Trust as the sole owner and Holder of such Security for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Security on the part of any Person other than such Holder,
regardless of any notice to the contrary.
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SECTION 9.4 Book Entry Interests.
Global Preferred Securities shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of the
Clearing Agency, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Preferred Securities, except as
provided in Section 9.2. Unless and until Definitive Preferred Securities have
been issued to the Preferred Security Beneficial Owners pursuant to Section 9.2:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Agreement (including the
payment of Distributions on the Global Preferred Securities and
receiving approvals, votes or consents hereunder) as the Holder of the
Preferred Securities and the sole holder of the Global Certificates and
shall have no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Agreement, the provisions of
this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or the
Participants, including receiving and transmitting payments of
Distributions on the Global Certificates to such Participants. DTC will
make book entry transfers among the Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required to be given by a Trustee under this Agreement, such
Trustee shall give all such notices and communications specified herein to be
given to the Holders of Global Preferred Securities to the Clearing Agency and
shall have no notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to the Preferred Securities.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Agreement, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Agreement or by law,
except that this provision shall not be deemed to modify Section 3.9(b).
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
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SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Agreement shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Person and any Indemnified Person; or
(ii) whenever this Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Agreement or by applicable law.
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SECTION 10.4 Indemnification.
(a)(i) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the Company Indemnified
Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Trust and except that no such indemnification
shall be made in respect of any claim, issue or matter as to which such
Company Indemnified Person shall have been adjudged to be liable to the
Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such Company
Indemnified Person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court shall
deem proper.
(iii) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a), or in
defense of any claim, issue or matter therein, he shall be indemnified,
to the full extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
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(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1)
by the Administrative Trustees by a majority vote of a Quorum
consisting of such Administrative Trustees who were not parties to such
action, suit or proceeding, (2) if such a Quorum is not obtainable, or,
even if obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion,
or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be
paid by the Sponsor in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
the Sponsor as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Sponsor if a determination
is reasonably and promptly made (1) by the Administrative Trustees by a
majority vote of a Quorum of disinterested Administrative Trustees, (2)
if such a Quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Administrative Trustees so directs, by independent
legal counsel in a written opinion or (3) by the Common Security Holder
of the Trust, that, based upon the facts known to the Administrative
Trustees, counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such Person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to
the Trust or its Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Preferred Security Holders of the Trust or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be
provided by a contract between the Sponsor and each Company Indemnified
Person who serves in such capacity at any time while this Section
10.4(a) is in effect. Any repeal or modification of this Section
10.4(a) shall not affect any rights or obligations then existing.
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(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any Person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a Person
who has ceased to be a Company Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
(b) The Sponsor agrees to indemnify the (i) Property Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based on the income
of such Fiduciary Indemnified Person) incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. With respect
to the Property Trustee, this provision shall not be deemed to modify Section
3.9(b) or the Trust Indenture Act. The obligation to indemnify as set forth in
this Section 10.4(b) shall survive the resignation or removal of the Property
Trustee or the Delaware Trustee and the satisfaction and discharge of this
Agreement.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be
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deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States Federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) The Administrative Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities, any annual United
States Federal income tax information statement, required by the Code,
containing such information with regard to the Securities held by each Holder as
is required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Administrative
Trustees shall endeavor to deliver all such information statements within 30
days after the end of each Fiscal Year of the Trust.
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(d) The Administrative Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an annual United
States Federal income tax return, on a Form 1041 or such other form required by
United States Federal income tax law, and any other annual income tax returns
required to be filed by the Administrative Trustees on behalf of the Trust with
any state or local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Administrative Trustees shall comply with
all withholding requirements under United States Federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such forms
or certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Administrative Trustees to assist them in determining the
extent of, and in fulfilling, the Trust's withholding obligations. The
Administrative Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and pay over
any amounts to any authority with respect to Distributions or allocations to any
Holder, the amount withheld shall be deemed to be a Distribution in the amount
of the withholding to the Holder. In the event of any claim of excess
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by the amount
of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Agreement or by any
applicable terms of the Securities, this Agreement may only be amended by a
written instrument approved and executed by:
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(i) the Sponsor and the Administrative Trustees (or, if
there are more than two Administrative Trustees, a majority of the
Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Agreement (including the terms
of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Agreement (including the terms
of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is permitted by,
and conforms to, the terms of this Agreement (including the
terms of the Securities) and that all conditions precedent to
the execution and delivery of such amendment have been
satisfied; and
(iii) to the extent the result of such amendment would:
(A) cause the Trust to fail to be classified for
purposes of United States Federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act.
(c) At such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of the Securities may be effected only
with such additional requirements as may be set forth in the
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terms of such Securities; provided, however, that, without the consent of each
Holder of the Securities, this Agreement may not be amended to (i) change the
Distribution rate (or manner of calculation of the Distribution rate), amount,
timing or currency or otherwise adversely affect the method of any required
payment, (ii) change the purposes of the Trust, (iii) authorize the issuance of
any additional beneficial interests in the Trust, (iv) change the [conversion,
exchange or] redemption provisions, (v) change the conditions precedent for the
Sponsor to elect to dissolve the Trust and distribute the Debentures to the
Holders of the Securities, (vi) change the Liquidation Distribution or other
provisions relating to the distribution of amounts payable upon the dissolution
and liquidation of the Trust, (vii) affect the limited liability of any Holder
of the Securities or (viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on or after the due
date therefor (or in the case of redemption, on the Redemption Date) [or for the
conversion or the exchange of Securities in accordance with their terms].
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under
Article V to increase or decrease the number of, and to appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 12.1(c), this Agreement may be
amended by the Sponsor and the Trustees without the consent of the Holders of
the Securities to:
(i) cure any ambiguity, correct or supplement any provision in
this Agreement that may be inconsistent with any other provision of
this Agreement or make any other provisions with respect to matters or
questions arising under this Agreement not inconsistent with any other
provisions of this Agreement;
(ii) modify, eliminate or add to any provisions of this
Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Securities are outstanding or to
ensure that the Trust will not be required to register as an Investment
Company under the Investment Company Act;
provided, however, that, in each case, such action shall not adversely affect in
any material respect the interests of the Holders of the Securities, and any
such amendments of this Agreement shall become effective when notice thereof is
given to the Holders of the Securities.
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SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Administrative Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Agreement, the
terms of the Securities or the rules of any stock exchange or quotation system
or market on which the Preferred Securities are listed or admitted for trading.
The Administrative Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in Liquidation Amount of the
Securities of such class. Such direction shall be given by delivering to the
Administrative Trustees one or more notices in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the general
or specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the security certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Agreement or the rules of any
stock exchange or quotation system or market on which the Preferred Securities
are listed or admitted for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in Liquidation
Amount that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in writing.
(c) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least seven
days and not more than 60 days before the date of such meeting. The
Administrative Trustees may specify that any written ballot submitted
to the Security Holders for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the
Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of eleven months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities
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executing it. Except as otherwise provided herein, all matters relating
to the giving, voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Administrative Trustees or by such other Person
that the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Agreement, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange or quotation system or market on which the
Preferred Securities are then listed or trading, otherwise provides,
the Administrative Trustees, in their sole discretion, shall establish
all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of Securities, waiver of
any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy or
any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Agreement, and
each Successor Property Trustee represents and warrants, as applicable, to the
Trust and the Sponsor at the time of the Successor Property Trustee's acceptance
of its appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or a State of the
United States, as the case may be, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
this Agreement;
(b) the execution, delivery and performance by the Property
Trustee of the Agreement have been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Agreement has been duly executed
and delivered by the Property Trustee under New York law and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights
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generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement
by the Property Trustee do not conflict with or constitute a breach of the
charter or by-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration
with or notice to, any federal or New York State banking authority is required
for the execution, delivery or performance by the Property Trustee of this
Agreement.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Agreement, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or the State of
Delaware, as the case may be, with corporate power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Agreement;
(b) the execution, delivery and performance by the Delaware
Trustee of this Agreement have been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Agreement has been duly
executed and delivered by the Delaware Trustee under Delaware law and
constitutes a legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement
by the Delaware Trustee do not conflict with or constitute a breach of the
charter or by-laws of the Delaware Trustee;
(d) no consent, approval or authorization of, or registration
with or notice to, any Federal or Delaware banking authority governing the trust
powers of the Delaware Trustee is required for the execution, delivery or
performance by the Delaware Trustee of this Agreement; and
(e) the Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the
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State of Delaware, and is a Person that satisfies for the Trust Section 3807(a)
of the Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrative
Trustees at the Trust's mailing address set forth below (or such other address
as the Trust may give notice of to the Holders of the Securities):
Hercules Trust I
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Department
Telecopier: (302) 984-4903
Telephone: (302) 428-3372
(c) if given to the Property Trustee, at the Property
Trustee's mailing address set forth below (or such other address as the Property
Trustee may give notice of to the Holders of the Securities):
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
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Telecopier: (215) 988-8372
Telephone: (215) 988-1329
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Vice-President and Treasurer, and
Corporate Secretary
Telecopier: (302) 594-5210
Telephone: (302) 594-6605
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Agreement and the rights of the parties hereunder shall
be governed by and construed in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws, except that the rights, limitations of
rights, obligations, duties and immunities of the Property Trustee shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States Federal income tax purposes as a grantor trust. The
provisions of this Agreement shall be interpreted to further this intention of
the parties.
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SECTION 14.4 Headings.
The Table of Contents, Cross-Reference Table and Headings
contained in this Agreement are inserted for convenience of reference only and
do not affect the interpretation of this Agreement or any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Agreement any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Agreement by the Sponsor and
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Agreement, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned have caused this Amended
and Restated Trust Agreement to be executed as of the day and year first above
written.
Israel J. Floyd, not in his individual capacity but
solely as Administrative Trustee of the Trust
---------------------------
Jan M. King, not in her individual capacity but
solely as Administrative Trustee of the Trust
---------------------------
Stuart C. Shears, not in his individual capacity but
solely as Administrative Trustee of the Trust
---------------------------
Chase Manhattan Bank Delaware, not in its
individual capacity but solely as Delaware Trustee
of the Trust
By:___________________________,
Name:
Title:
The Chase Manhattan Bank, not in its individual
capacity but solely as Property Trustee of the Trust
By:___________________________,
Name:
Title:
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HERCULES INCORPORATED,
as Sponsor
By:_________________________
Name:
Title:
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ANNEX I
TERMS* OF
[_____%] [FLOATING RATE] PREFERRED SECURITIES
[_____%] [FLOATING RATE] COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Trust
Agreement of the Trust, dated as of _________, _____ (as amended from time to
time, the "Agreement"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the
Common Securities (collectively, the "Securities") are set forth below (each
capitalized term used but not defined herein has the meaning set forth in the
Agreement or, if not defined in such Agreement, as defined in the Indenture):
1. Designation and Number.
(a) Preferred Securities. [Up to]_______ Preferred Securities
of the Trust, with an aggregate liquidation amount with respect to the assets of
the Trust of [up to] ________ dollars ($_________), and with a Liquidation
Amount with respect to the assets of the Trust of $ ___ per security, are hereby
designated for the purposes of identification only as "[___%] [Floating Rate]
Preferred Securities" (the "Preferred Securities"). The certificates evidencing
the Preferred Securities shall be substantially in the form of Exhibit A-1 to
the Agreement, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange or quotation system on which the Preferred Securities are
listed or quoted.
(b) Common Securities. [Up to]________ Common Securities of
the Trust with an aggregate Liquidation Amount with respect to the assets of the
Trust of [up to] ____________ dollars ($_________), and with a Liquidation
Amount with respect to the assets of the Trust of $____ per security, are hereby
designated for the purposes of identification only as "[____%] [Floating Rate]
Common Securities" (the "Common Securities"). The certificates evidencing the
Common Securities shall be substantially in the form of Exhibit A-2 to the
Agreement, with such changes and additions thereto or deletions therefrom as may
be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions on each Security will be payable at a rate
per annum of [___%] [equal to LIBOR plus ___%] (the "Distribution Rate") of the
liquidation amount of $_____ per Security (the "Liquidation Amount"), such rate
being the rate of interest payable on the Debentures to be held by the Property
Trustee. [LIBOR and the amount payable in respect of
- --------
* SUBJECT TO ADDITIONAL OR ALTERNATIVE PROVISIONS IF ANY OF THE SECURITIES ARE
SUBJECT TO CONVERSION OR EXCHANGE.
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a Distribution for a Distribution Period (as defined below) will be calculated
by the Calculation Agent in the same manner as LIBOR and the interest payable in
respect of each Interest Period for the Debentures, as set forth in the
Indenture.] Distributions in arrears for more than one ___________ period will
bear additional distributions thereon compounded ________ at the applicable
periodic Distribution Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes any such additional distributions
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds legally available therefor.
(b) Distributions on the Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from ____________ ,____, to but excluding
the related Distribution Date or Redemption Date (each defined below) and will
be payable ________ in arrears on _____________ of each year, commencing
________, _____ (each, a "Distribution Date"), except as otherwise described
below. The amount of Distributions payable for any Distribution Period will be
computed on the basis of [a 360-day year consisting of twelve 30-day months]
[the actual number of days elapsed in such period and a year of 360 days].
"Distribution Period" means the period from and including the immediately
preceding Distribution Date (or _______, ____ , in the case of the first
Distribution Period) to but excluding the applicable Distribution Date or
Redemption Date. If a Distribution Date is not a Business Day, then [such
Distribution Date and the first day of the Distribution Period commencing on
such Distribution Date will be the next succeeding Business Day, except if such
Business Day is in the next succeeding calendar month, such Distribution Date
and the first day of such Distribution Period will be the immediately preceding
Business Day] [payments of any Distributions payable on such date will be made
on the next succeeding Business Day, and no interest or other payment in respect
of any such delay will accumulate for the period to but excluding such Business
Day].
As long as no Event of Default has occurred and is continuing
under the Indenture, the Debenture Issuer has the right under the Indenture to
defer payments of interest on the Debentures by extending the interest payment
period at any time and from time to time for a period not exceeding ______
consecutive __________ periods (each __________ period as to which ___________
interest payments have been deferred is referred to herein as an "Extension
Period"), provided that an Extension Period must end on an Interest Payment Date
for the Debentures and may not extend beyond the Stated Maturity Date or date of
earlier redemption for the Debentures. As a consequence of such deferral,
Distributions on the Securities will also be deferred during an Extension
Period. Despite such deferral, _________ Distributions will continue to
accumulate with additional interest thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then
accruing on the Debentures) at the Distribution Rate then in effect, compounded
__________ during any Extension Period. Prior to the termination of an Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that an Extension Period, together
with all such previous and further extensions, may not exceed _____ consecutive
______
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periods, must end on an Interest Payment Date for the Debentures and may not
extend beyond the Stated Maturity Date or date of earlier redemption for the
Debentures. At the end of an Extension Period, all accumulated and unpaid
Distributions (but only to the extent payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds legally available therefor) will be payable to the Holders as they
appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period (or any extension thereof) and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements.
(c) Distributions on a Distribution Date will be payable to
the Holders thereof as they appear on the books and records of the Trust on
the_______ day of the month [immediately preceding] [in which] such Distribution
Date [occurs]. The relevant record dates for the Common Securities shall be the
same as the record dates for the Preferred Securities. Distributions payable on
any Securities that are not punctually paid or duly provided for on any
Distribution Date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, will cease to be payable to the Holder on the
relevant record date, and such defaulted Distributions will instead be payable
to the Person in whose name such Securities are registered on the Special Record
Date or other specified date determined in accordance with the Indenture.
[(d) ______________ shall act as Calculation Agent to
determine LIBOR and calculate the Distribution Rate of, and the amount of
Distributions payable on, the Securities for each Distribution Period pursuant
to the terms set forth herein and in the Securities.]
[(d)] [(e)] In the event that there is any money or other property held
by or for the Trust that is not accounted for hereunder, such property shall be
distributed on a Pro Rata (as defined herein) basis among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust, the Trust shall be
liquidated by the Administrative Trustees as expeditiously as the Administrative
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
Holders of the Securities a Like Amount (as defined below) of the Debentures,
unless such distribution is determined by the Property Trustee not to be
practicable, in which event such Holders will be entitled to receive out of the
assets of the Trust legally available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the aggregate of the Liquidation Amount of $_______ per
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount is referred to herein as the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the Securities,
Securities having a Liquidation Amount equal to the principal amount of
Debentures to be paid in accordance with their terms and (ii) with respect to a
distribution of Debentures upon the dissolution of the Trust,
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Debentures having a principal amount equal to the Liquidation Amount of the
Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets legally available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in part,
at stated maturity or date of earlier redemption (either at the option of the
Debenture Issuer or pursuant to a Tax Event, as described below), the proceeds
from such repayment shall be simultaneously applied by the Property Trustee to
redeem a Like Amount of the Securities at a redemption price equal to (i) in the
case of the repayment of the Debentures at stated maturity, the Maturity
Redemption Price (as defined below), (ii) in the case of the optional redemption
of the Debentures upon the occurrence [prior to _________] and continuation of a
Tax Event, the Tax Event Redemption Price (as defined below) and (iii) in the
case of the optional redemption of the Debentures other than as a result of the
occurrence and continuance of a Tax Event, the Optional Redemption Price (as
defined below). The Maturity Redemption Price, the Tax Event Redemption Price
and the Optional Redemption Price are referred to collectively as the
"Redemption Price" and the date fixed for redemption of the Securities is
referred to herein as the "Redemption Date". Holders will be given not less than
30 nor more than 60 days' prior written notice of such redemption. Any
redemption of Securities shall be made, and the applicable Redemption Price
shall be payable, on the Redemption Date, and only to the extent that the Trust
has funds legally available for the payment thereof.
(b) (i) The "Maturity Redemption Price", shall mean a price
equal to 100% of the Liquidation Amount of the Securities to be redeemed plus
accumulated and unpaid Distributions thereon, if any, to the date of redemption.
(ii) In the case of an optional redemption other than as a result of
the occurrence and continuance of a Tax Event, if fewer than all the outstanding
Securities are to be so redeemed, the Common Securities and the Preferred
Securities will be redeemed on a Pro Rata basis and the Preferred Securities to
be redeemed will be determined as described in Section 4(f)(ii) below. [Upon the
entry of an order for the dissolution of the Trust by a court of competent
jurisdiction, the Debentures thereafter will be subject to optional repayment,
in whole, but not in part, on or after ____________, _____.]
The Debenture Issuer shall have the right (subject to the conditions in
the Indenture) to redeem the Debentures in whole or in part at any time on or
after _________, ______, and, simultaneous with such redemption, to cause a Like
Amount of the Securities to be redeemed by the Trust at the Optional Redemption
Price on a Pro Rata basis. "Optional Redemption Price" shall mean a price equal
to [_____%] [the percentage of the Liquidation Amount of Securities to
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be redeemed plus accumulated and unpaid Distributions thereon, if any, to the
date of redemption if redeemed during the 12-month period beginning ________ of
the years indicated below:
Year Percentage]
------ ----------
(c) If at any time a Tax Event occurs [prior to ____________]
and is continuing, the Debenture Issuer shall have the right (subject to the
conditions set forth in the Indenture) to redeem the Debentures in whole, but
not in part, within the 90 days following the occurrence of such Tax Event (the
"90 Day Period"), and, simultaneous with such redemption, to cause a Like Amount
of the Securities to be redeemed by the Trust at the Tax Event Redemption Price
on a Pro Rata basis.
"Tax Event" shall occur upon receipt by the Administrative Trustees and
the Debenture Issuer of a reasoned Opinion of Counsel from counsel experienced
in such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the date of the Agreement, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income received or
accrued on the Debentures, (ii) the interest payable by the Debenture Issuer on
the Debentures is not, or within 90 days of the date of such opinion will not
be, deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Tax Event Redemption Price" shall mean a price equal to [the greater
of (i)] 100% of the Liquidation Amount of Securities to be redeemed [or (ii) the
sum, as determined by a Quotation Agent (as defined in the Indenture), of the
present values of the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a _________ basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate
(as defined in the Indenture), plus, in each case, accumulated and unpaid
Distributions thereon, if any, to the date of such redemption].
(d) On and from the date fixed by the Administrative Trustees
for any distribution of Debentures and liquidation of the Trust: (i) the
Securities will no longer be deemed to be outstanding, (ii) the Clearing Agency
or its nominee (or any successor Clearing Agency or its nominee), as the Holder
of the Preferred Securities, will receive a registered global
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certificate or certificates representing the Debentures to be delivered upon
such distribution and (iii) any certificates representing Securities not held by
the Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) will be deemed to represent beneficial interests in Debentures until
such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
(e) The Trust may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions have been paid on all
Securities for all Distribution periods terminating on or before the Redemption
Date.
(f) The procedure with respect to redemptions or distributions
of Debentures shall be as follows:
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by an Administrative
Trustee on behalf of the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before
the date fixed for redemption or exchange thereof which, in the case of
a redemption, will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption or exchange
and the dates on which notices are given pursuant to this Section
4(f)(i), a Redemption/ Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect
in the Redemption/ Distribution Notice or in the mailing of either
thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(ii)In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed on a Pro Rata basis from each Holder of Preferred Securities,
it being understood that, in respect of Preferred Securities registered
in the name of and held of record by the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to the
Clearing Agency and disbursed by such Clearing Agency in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust
gives a Redemption/Distribution Notice (which notice will be
irrevocable), then (A) with respect to Global Preferred Securities
representing Preferred Securities issued in book-entry form, by 12:00
noon, New York City time, on the Redemption Date, provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of
cash in connection with the related redemption or maturity of the
Debentures by 10:00 a.m., New York City time, on the stated maturity
date or the date of earlier redemption, as the case requires, the
Property Trustee will deposit irrevocably with the Clearing Agency or
its nominee (or
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successor Clearing Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to such Preferred Securities
and will give the Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the relevant Participants, and
(B) with respect to Definitive Preferred Securities and Common
Securities, provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of such Holder appearing on the books and
records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, then immediately prior to the close of business
on the date of such deposit, or on the Redemption Date, as applicable,
Distributions will cease to accumulate on the Securities so called for
redemption and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on
such Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment of accumulated and unpaid Distributions on
the Redemption Date will be subject to the rights of Holders of
Securities on the close of business on a record date in respect of a
Distribution Date occurring on or prior to such Redemption Date.
(v) Neither the Administrative Trustees nor the Trust
shall be required to register or cause to be registered the transfer of
(i) any Securities beginning on the opening of business 15 days before
the day of mailing of a notice of redemption or any notice of selection
of Securities for redemption or (ii) any Securities selected for
redemption except the unredeemed portion of any Security being
redeemed. If a Redemption Date is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the next
succeeding Business Day, and no interest or other payment in respect of
any such delay will accumulate for the period to but excluding such
Business Day. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities will
continue to accumulate from the original redemption date to the actual
date of payment, in which case the actual payment date will be
considered the Redemption Date for purposes of calculating the
Redemption Price.
(vi) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust to (A) in respect of the
Preferred Securities, the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee) if the Global Preferred
Securities have been issued or, if Definitive Preferred Securities have
been issued, to the Holders thereof, and (B) in respect of the Common
Securities, to the Sponsor.
(vii) Subject to the foregoing and applicable law
(including, without limitation, United States Federal securities laws
and banking laws), the Sponsor or any of
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its subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law or the Agreement, the Holders of the Preferred
Securities will have no voting rights.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding with respect to any remedy available to the Debenture
Trustee, or exercise any trust or power conferred upon the Debenture Trustee,
with respect to the Debentures, (ii) waive any past default that is waivable
under the Indenture, (iii) exercise any right to rescind or annul a declaration
of acceleration of the maturity of the principal of the Debentures, or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required, without, in each case,
obtaining (1) the prior approval of the Holders of a Majority in Liquidation
Amount of all outstanding Preferred Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior approval of each Holder of the Preferred Securities
and (2) an Opinion of Counsel delivered to the Trust from tax counsel
experienced in such matters to the effect that the Trust will not be classified
as an association taxable as corporation for United States Federal income tax
purposes on account of such action.
Notwithstanding anything to the contrary contained herein, if an Event
of Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or, in the case of
redemption, on the Redemption Date), then a Holder of Preferred Securities may
directly institute a proceeding against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such a Direct Action, (i)
the rights of the Common Securities Holder will be subordinated to the rights of
Holders of Preferred Securities with respect to payments made or required to be
made by the Debenture Issuer in such Direct Action and (ii) the Debenture Issuer
shall remain obligated to pay the principal of, premium, if any, or interest on
such Debentures, and the Debenture Issuer shall be subrogated to the rights of
such Holder of Preferred Securities to the extent of any payment made by the
Debenture Issuer to such Holder in such Direct Action.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Property Trustees will cause a notice of any meeting at which
Holders of Preferred Securities are entitled to vote to be mailed to each Holder
of record of Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such
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meeting on which such Holders are entitled to vote and (iii) instructions for
the delivery of proxies.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities, or to
distribute the Debentures, in accordance with the Agreement and these terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b) and 7 as otherwise
required by law or the Agreement, the Holders of the Common Securities will have
no voting rights.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding with respect to any remedy available to the Debenture
Trustee, or exercise any trust or power conferred upon the Debenture Trustee,
with respect to the Debentures, (ii) waive any past default that is waivable
under the Indenture, (iii) exercise any right to rescind or annul a declaration
of acceleration of the maturity of the principal of the Debentures or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required, without, in each case,
obtaining (1) the prior approval of the Holders of a Majority in Liquidation
Amount of all outstanding Common Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior approval of the Common Securities Holder and (2) an
Opinion of Counsel delivered to the Trust from tax counsel experienced in such
matters to the effect that the Trust will not be classified as an association
taxable as a corporation for United States Federal income tax purposes on
account of such action.
Notwithstanding anything to the contrary contained herein, if an Event
of Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or, in the case of
redemption, on the Redemption Date), then a Holder of Common Securities may
institute a Direct Action against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures on or after the respective due date specified in the
Debentures. In connection with such a Direct Action, (i) the rights of the
Common Securities Holder will be subordinated to the rights of Holders of
Preferred Securities with respect to payments made or required to be made by the
Debenture Issuer in such Direct Action and (ii) the Debenture Issuer shall
remain obligated to pay the principal of, premium, if any, or interest on such
Debentures, and the Debenture Issuer shall be subrogated to the rights of such
Holder of
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Preferred Securities to the extent of any payment made by the Debenture Issuer
to such Holder in such Direct Action.
Any approval or direction of Holder(s) of Common Securities may be
given at a separate meeting of Holder(s) of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Administrative Trustees will cause a notice of any meeting at which
Holder(s) of Common Securities are entitled to vote, to be mailed to each Holder
of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holder(s) are entitled to
vote and (iii) instructions for the delivery of proxies.
No vote or consent of the Holder(s) of the Common Securities will be
required for the Trust to redeem and cancel Common Securities, or to distribute
the Debentures, in accordance with the Agreement and these terms of the
Securities.
7. Amendments to Agreement.
In addition to the requirements set out in Section 12.1 of the
Agreement, the Agreement may be amended from time to time by the Sponsor and the
Trustees with (i) the consent of Holders of a Majority in Liquidation Amount of
all outstanding Securities, and (ii) receipt by the Trustees of an opinion of
counsel experienced in such matters to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States Federal
income tax purposes or the Trust's exemption from status as an Investment
Company under the Investment Company Act; provided, however, that, without the
consent of each Holder of the Securities, the Agreement may not be amended to
(i) change the Distribution Rate (or manner of calculation of the Distribution
Rate), amount, timing or currency or otherwise adversely affect the method of
any required payment, (ii) change the purposes of the Trust, (iii) authorize the
issuance of any additional beneficial interests in the Trust, (iv) change the
redemption provisions, (v) change the conditions precedent for the Sponsor to
elect to dissolve the Trust and distribute the Debentures to the Holders of the
Securities, (vi) change the Liquidation Distribution or other provisions
relating to the distribution of amounts payable upon the dissolution and
liquidation of the Trust, (vii) affect the limited liability of any Holder of
the Securities or (viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on or after the due
date therefor (or, in the case of redemption, on the Redemption Date).
8. Pro Rata.
A reference herein to any payment, distribution or treatment as being
"Pro Rata" shall mean pro rata to each Holder of Securities according to the
aggregate Liquidation Amount of the Securities held by such Holder in relation
to the aggregate Liquidation Amount of all Securities outstanding unless, in
relation to a payment, an Event of Default under the Agreement has occurred and
is continuing, in which case any funds legally available to make such payment
shall
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be paid first to each Holder of the Preferred Securities pro rata according to
the aggregate Liquidation Amount of Preferred Securities held by such Holder
relative to the aggregate Liquidation Amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate Liquidation Amount of Common Securities held by such Holder
relative to the aggregate Liquidation Amount of all Common Securities
outstanding.
9. Ranking.
The Preferred Securities rank pari passu with the Common Securities and
payment thereon shall be made Pro Rata with the Common Securities, except that,
if an Event of Default under the Agreement occurs and is continuing, no payments
in respect of Distributions on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Securities shall be made until the Holders
of the Preferred Securities shall be paid in full the Distributions, Redemption
Price, Liquidation Distribution and other payments to which they are entitled at
such time.
10. Acceptance of Securities Guarantees and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee, the Common Securities Guarantee and the Indenture, including the
subordination provisions therein.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar
rights to subscribe for any additional securities of the Trust.
12. Miscellaneous.
These terms constitute a part of the Agreement.
The Sponsor will provide a copy of the Agreement, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate)
and the Indenture (including any supplemental indenture) to a Holder without
charge on written request to the Sponsor at its principal place of business.
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EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY, INSERT:
THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE MEANING OF THE
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING
AGENCY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE AGREEMENT AND NO TRANSFER OF
THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A
WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE
OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING
AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
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<PAGE> 83
Certificate Number Number of Preferred
Securities
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
HERCULES TRUST I
[____%] [Floating Rate] Preferred Securities
(liquidation amount $ ____ per Preferred Security)
HERCULES TRUST I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of __________ securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [____%] [Floating Rate] Preferred Securities (liquidation amount
$ ____ per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Trust Agreement of the Trust dated as of _____________, ____, as the
same may be amended from time to time (the "Agreement"), including the
designation of the terms of the Preferred Securities as set forth in Annex I to
the Agreement. Capitalized terms used but not defined herein shall have the
meaning given them in the Agreement. The Sponsor will provide a copy of the
Agreement, the Preferred Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the Agreement
and is entitled to the benefits thereunder and to the benefits of the Preferred
Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
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IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of --------------,-----.
HERCULES TRUST I
By:
----------------------------------
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
-----------------------------------
Authorized Signatory
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[FORM OF REVERSE OF SECURITY]
Distributions on each Preferred Security will be payable at a rate per
annum [of ____ %] [equal to LIBOR plus ____%] (the "Distribution Rate") of the
Liquidation Amount of $ ____ per Preferred Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. [LIBOR
and the amount payable in respect of a Distribution for a Distribution Period
will be calculated by the Calculation Agent in the same manner as LIBOR and the
interest payable in respect of each Interest Period for the Debentures, as set
forth in the Indenture.] Distributions in arrears for more than one ______
period will bear additional distributions thereon compounded ______ at the
applicable periodic Distribution Rate (to the extent permitted by applicable
law). The term "Distributions", as used herein, includes any such additional
distributions unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor.
Distributions on the Preferred Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from _____________, ____, to but excluding
the related Distribution Date (as defined herein) or any date fixed for
redemption (a "Redemption Date") and will be payable ______ in arrears on
_________, [___________, _________] and ________ of each year, commencing
______________, _____ (each, a "Distribution Date"), except as otherwise
described below and in the Agreement. The amount of Distributions payable for
any Distribution Period will be computed on the basis of [a 360-day year
consisting of twelve 30-day months] [the actual number of days elapsed in such
period and a year of 360 days]. "Distribution Period" means the period from and
including the immediately preceding Distribution Date (or _______, _____, in the
case of the first Distribution Period) to but excluding the applicable
Distribution Date or Redemption Date. If a Distribution Date is not a Business
Day, then (such Distribution Date and the first day of the Distribution Period
commencing on such Distribution Date will be the next succeeding Business Day,
except if such Business Day is in the next succeeding calendar month, such
Distribution Date and the first day of such Distribution Period will be the
immediately preceding Business Day] [payments of any Distribution payable on
such date will be made on the next succeeding Business Day, and no interest or
other payment in respect of such delay shall accumulate for the period to but
excluding such Business Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding ______
consecutive _______ periods (each, an "Extension Period"), provided that an
Extension Period must end on an interest payment date for the Debentures and may
not extend beyond the stated maturity date or redemption date for the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, ______ Distributions
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will continue to accumulate with additional interest thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Distribution Rate then in
effect compounded ______ during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further defer
payments of interest by further extending such Extension Period; provided that
such Extension Period, together with all such previous and further extensions,
may not exceed ______ consecutive ______ periods, must end on an interest
payment date for the Debentures and may not extend beyond the Maturity Date or
Redemption Date of the Debentures. At the end of the Extension Period, all
accumulated and unpaid Distributions (but only to the extent payments are made
in respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor) will be payable to the Holders as
they appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period (or any extension period thereof) and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
foregoing requirements.
The Preferred Securities shall be redeemable [and convertible] [and
exchangeable] as provided in the Agreement.
A1-5
<PAGE> 87
ASSIGNMENT
---------------------
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer
this Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee**: ___________________________________
*** Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
A1-6
<PAGE> 88
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE SUBJECT
TO THE TERMS OF THE AGREEMENT (AS DEFINED HEREIN)
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
HERCULES TRUST I
[____ %] [Floating Rate] Common Securities
(liquidation amount $ ____ per Common Security)
HERCULES TRUST I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
Hercules Incorporated (the "Holder") is the registered owner of
__________ securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the [____%] [Floating
Rate] Common Securities (liquidation amount $ ____ per Common Security)
(the "Common Securities"). The Common Securities are not transferable.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby
are issued and shall in all respects be subject to the provisions of
the Amended and Restated Trust Agreement of the Trust dated as of
______________, ______, as the same may be amended from time to time
(the "Agreement"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Agreement. Capitalized terms
used but not defined herein shall have the meaning given them in the
Agreement. The Sponsor will provide a copy of the Agreement, the Common
Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Agreement and is entitled to the benefits thereunder and to the
benefits of the Common Securities Guarantee to the extent provided
therein.
By acceptance, the Holder agrees to treat, for United States
Federal income tax purposes, the Debentures as indebtedness and the
Common Securities as evidence of indirect beneficial ownership in the
Debentures.
A2-1
<PAGE> 89
IN WITNESS WHEREOF, the Trust has executed this certificate
this ___ day of_________________________,________.
HERCULES TRUST I
By:
--------------------------------
Name:
Title: Administrative Trustee
A2-2
<PAGE> 90
[FORM OF REVERSE OF SECURITY]
Distributions on each Common Security will be payable at a rate per
annum [of ____%] [equal to LIBOR plus ____ %] (the "Distribution Rate") of the
Liquidation Amount of $ ____ per Common Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. [LIBOR
and the amount payable in respect of a Distribution for a Distribution Period
will be calculated by the Calculation Agent in the same manner as LIBOR and the
interest payable in respect of each Interest Period for the Debentures, as set
forth in the Indenture.] Distributions in arrears for more than one ____ period
will bear additional distributions thereon compounded ____ at the applicable
periodic Distribution Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes any such additional distributions
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds legally available therefor.
Distributions on the Common Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from __________, ____ , to but excluding the
related Distribution Date (as defined herein) or any date fixed for redemption
(a "Redemption Date"), and will be payable ______ in arrears on _________[,
____________, ___________] and ____________ of each year, commencing __________
, _____ (each, a "Distribution Date"), except as otherwise described below and
in the Agreement. The amount of Distributions payable for any Distribution
Period will be computed on the basis of [a 360-day year consisting of twelve
30-day months] [the actual number of days elapsed in such period and a year of
360 days]. "Distribution Period" means the period from and including the
immediately preceding Distribution Date (or ________, _____, in the case of the
first Distribution Period) to but excluding the applicable Distribution Date or
Redemption Date. If a Distribution Date is not a Business Day, then [such
Distribution Date and the first day of the Distribution Period commencing on
such Distribution Date will be the next succeeding Business Day, except if such
Business Day is in the next succeeding calendar month, such Distribution Date
and the first day of such Distribution Period will be the immediately preceding
Business Day] [payment s of any Distributions payable on such date will be made
on the next succeeding Business Day, and no interest or other payment in respect
of any such delay shall accumulate for the period to but excluding such Business
Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding ______
consecutive ______ periods (each, an "Extension Period"), provided that an
Extension Period must end on an interest payment date for the Debentures and may
not extend beyond the stated maturity date or redemption date for the
Debentures. As a consequence of
A2-3
<PAGE> 91
such deferral, Distributions will also be deferred. Despite such deferral,
______ Distributions will continue to accumulate with additional interest
thereon (to the extent permitted by applicable law but not at a rate greater
than the rate at which interest is then accruing on the Debentures) at the
Distribution Rate then in effect compounded ______ during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension Period, together with all such
previous and further extensions, may not exceed ______ consecutive ______
periods, must end on an interest payment date for the Debentures and may not
extend beyond the Maturity Date or Redemption Date of the Debentures. At the end
of the Extension Period, all accumulated and unpaid Distributions (but only to
the extent payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor) will be payable to the Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the foregoing requirements.
The Common Securities shall be redeemable [and convertible] [and
exchangeable] as provided in the Agreement.
A2-4
<PAGE> 92
EXHIBIT B
[Insert Specimen Debenture]
B-1
<PAGE> 93
EXHIBIT C
[Insert Purchase Agreement]
C-1
<PAGE> 1
AMENDED AND RESTATED TRUST AGREEMENT
HERCULES TRUST II
Dated as of _________, ____
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS
<TABLE>
<S> <C> <C>
SECTION 1.1 Definitions .............................................. 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ......................... 9
SECTION 2.2 Lists of Holders of Securities ........................... 9
SECTION 2.3 Reports by the Property Trustee .......................... 10
SECTION 2.4 Periodic Reports to Property Trustee ..................... 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent
SECTION 2.6 Events of Default; Waiver ................................ 10
SECTION 2.7 Event of Default; Notice ................................. 12
ARTICLE III
ORGANIZATION
SECTION 3.1 Name ..................................................... 13
SECTION 3.2 Office ................................................... 13
SECTION 3.3 Purpose .................................................. 13
SECTION 3.4 Authority ................................................ 13
SECTION 3.5 Title to Property of the Trust ........................... 13
SECTION 3.6 Powers and Duties of the Administrative Trustees ......... 14
SECTION 3.7 Prohibition of Actions the Trust and the Trustees ........ 16
SECTION 3.8 Powers and Duties of the Property Trustee
SECTION 3.9 Certain Duties and Responsibilities ...................... 18
of the Property Trustee .................................. 20
SECTION 3.10 Certain Rights of Property Trustee ....................... 22
SECTION 3.11 Delaware Trustee ......................................... 24
SECTION 3.12 Execution of Documents ................................... 25
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities ............................................... 25
SECTION 3.14 Duration of Trust ........................................ 25
SECTION 3.15 Mergers .................................................. 25
</TABLE>
i
<PAGE> 3
<TABLE>
ARTICLE IV
SPONSOR
<S> <C> <C>
SECTION 4.1 Sponsor's Purchase of Common Securities ............. 27
SECTION 4.2 Responsibilities of the Sponsor ..................... 28
SECTION 4.3 Right to Proceed .................................... 28
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee ....... 29
SECTION 5.2 Delaware Trustee .................................... 29
SECTION 5.3 Property Trustee; Eligibility ....................... 30
SECTION 5.4 Certain Qualifications of Administrative Trustees
and Delaware Trustee Generally ...................... 31
SECTION 5.5 Administrative Trustees ............................. 31
SECTION 5.6 Delaware Trustee .................................... 31
SECTION 5.7 Appointment, Removal and Resignation of Trustees .... 32
SECTION 5.8 Vacancies among Trustees ............................ 33
SECTION 5.9 Effect of Vacancies ................................. 34
SECTION 5.10 Meetings ............................................ 34
SECTION 5.11 Delegation of Power ................................. 34
SECTION 5.12 Merger, Conversion, Consolidation or
Succession to Business .............................. 35
SECTION 5.13 Compensation ........................................ 35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions ....................................... 35
ARTICLE VII ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities ............. 36
SECTION 7.2 Execution and Authentication ........................ 36
SECTION 7.3 Form and Dating ..................................... 37
SECTION 7.4 Registrar and Paying Agent .......................... 38
SECTION 7.5 Paying Agent to Hold Money in Trust ................. 39
SECTION 7.6 Replacement Securities .............................. 39
SECTION 7.7 Outstanding Preferred Securities .................... 40
SECTION 7.8 Preferred Securities in Treasury .................... 40
SECTION 7.9 Temporary Securities ................................ 40
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 7.10 Cancellation ..................................... 41
SECTION 7.11 CUSIP Numbers .................................... 41
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust ............................. 42
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities ........................... 43
SECTION 9.2 Transfer Procedures and Restrictions ............. 43
SECTION 9.3 Deemed Security Holders .......................... 46
SECTION 9.4 Book Entry Interests ............................. 47
SECTION 9.5 Notices to Clearing Agency ....................... 47
SECTION 9.6 Appointment of Successor Clearing Agency ......... 47
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1 Liability ........................................ 48
SECTION 10.2 Exculpation ...................................... 48
SECTION 10.3 Fiduciary Duty ................................... 49
SECTION 10.4 Indemnification .................................. 50
SECTION 10.5 Outside Businesses ............................... 52
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year ...................................... 53
SECTION 11.2 Certain Accounting Matters ....................... 53
SECTION 11.3 Banking .......................................... 54
SECTION 11.4 Withholding ...................................... 54
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments ....................................... 54
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent ........................ 57
</TABLE>
iii
<PAGE> 5
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
<TABLE>
<S> <C> <C>
SECTION 13.1 Representations and Warranties of Property Trustee ... 58
SECTION 13.2 Representations and Warranties of Delaware Trustee ... 58
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices ............................................. 60
SECTION 14.2 Governing Law ....................................... 61
SECTION 14.3 Intention of the Parties ............................ 61
SECTION 14.4 Headings ............................................ 62
SECTION 14.5 Successors and Assigns .............................. 62
SECTION 14.6 Partial Enforceability .............................. 62
SECTION 14.7 Counterparts ........................................ 62
</TABLE>
iv
<PAGE> 6
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Agreement
------------------- ---------
<S> <C>
310(a)........................................................ 5.3(a)
310(b)........................................................ 5.3(c)
310(c)........................................................ Inapplicable
311(a) and (b)................................................ 5.3(c)
311(c)........................................................ Inapplicable
312(a)........................................................ 2.2(a)
312(b)........................................................ 2.2(b)
313........................................................... 2.3
314(a)........................................................ 2.4
314(b)........................................................ Inapplicable
314(c)........................................................ 2.5
314(d)........................................................ Inapplicable
314(e)........................................................ 1.1, 2.5
314(f)........................................................ Inapplicable
315(a)........................................................ 3.9(b)
315(b)........................................................ 2.7(a)
315(c)........................................................ 3.9(a)
315(d)........................................................ 3.9(b)
316(a) and (b) 2.6 and Annex I
316(c)........................................................ 3.6(f)
317(a)........................................................ 3.8(c)
317(b)........................................................ 3.8(i)
</TABLE>
---------------
% This Cross-Reference Table does not constitute part of the Agreement
and shall not affect the interpretation of any of its terms or
provisions.
i
<PAGE> 7
AMENDED AND RESTATED
TRUST AGREEMENT
OF
HERCULES TRUST II
--------, ----
AMENDED AND RESTATED TRUST AGREEMENT (the "Agreement") dated
and effective as of ________, ____, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (as defined herein) to be issued
pursuant to this Agreement;
WHEREAS, the Trustees and the Sponsor established Hercules
Trust II (the "Trust"), a trust created under the Business Trust Act (as defined
herein) pursuant to a Trust Agreement dated as of September 14, 1998 (the
"Original Agreement"), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on September 14, 1998, for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Debenture Issuer (each as hereinafter defined) and
engaging in only those activities necessary, advisable or incidental thereto;
WHEREAS, the parties hereto desire to amend and restate each
and every term and provision of the Original Agreement; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust continue as a business trust under the Business Trust Act, that
the Original Agreement be amended and restated in its entirety as provided
herein and that this Agreement constitute the governing instrument of such
business trust, the Trustees declare that all assets contributed to the Trust
will be held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Agreement and, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
1
<PAGE> 8
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Agreement but not defined
in the preamble above or elsewhere herein have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Agreement has the same
meaning throughout;
(c) all references to "the Agreement" or "this Agreement" are
to this Agreement and each Annex and Exhibit hereto, as modified,
supplemented or amended from time to time;
(d) all references in this Agreement to Articles and Sections
and Annexes and Exhibits are to Articles and Sections of and Annexes
and Exhibits to this Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as defined
herein) has the same meaning when used in this Agreement unless
otherwise defined in this Agreement or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Administrative Trustee" has the meaning set forth in Section
5.1.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar [or Conversion
Agent].
"Agreement" means this Amended and Restated Trust Agreement,
dated as of _____________.
"Authorized Officer" of a Person means any other Person that
is authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a Global
Preferred Security Certificate registered in the name of a Clearing Agency or
its nominee, ownership and transfers
2
<PAGE> 9
of which shall be maintained and made through book entries by a Clearing Agency
as described in Section 9.4.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banking institutions in The City of New York or Wilmington,
Delaware are authorized or required by law, regulation or executive order to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a global certificate and which
shall undertake to effect book-entry transfers and pledges of the Preferred
Securities.
"Closing Time" means the Closing Time as defined in the
Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if at any time after the
execution of this Agreement such Commission is not existing and performing the
duties now assigned to it under applicable federal securities laws, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in Section
7.1(a).
"Common Securities Guarantee" means the Common Securities
Guarantee Agreement, dated as of ________, _____ of the Sponsor in respect of
the Common Securities.
"Company Indemnified Person" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrative Trustee; or (d) any officer, employee or agent of the
Trust or its Affiliates; provided that the term "Company Indemnified Person"
shall not include any Fiduciary Indemnified Person.
"Conversion Agent" has the meaning specified in Section 7.4.
"Corporate Trust Office" means the office of the Property
Trustee for the conduct of corporate trust business at which matters related to
this Agreement shall, at any particular time, be principally administered, which
office at the date of execution of this Agreement is located at One Liberty
Place, 52nd Floor, 1650 Market Street, Philadelphia, Pennsylvania 19103.
3
<PAGE> 10
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Hercules Incorporated, a Delaware
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
"Debentures" means the _________ Junior Subordinated
Deferrable Interest Debentures due ________, ____ of the Debenture Issuer issued
pursuant to the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Default" means an event, act or condition that with notice of
lapse of time, or both, would constitute an Event of Default.
"Definitive Preferred Securities" has the meaning set forth in
Section 7.3(a).
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" means, with respect to the Securities, an
Event of Default (as defined in the Indenture) that has occurred and is
continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Preferred Security" has the meaning set forth in
Section 7.3(a).
"Holder" means a Person in whose name a Security or Successor
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
4
<PAGE> 11
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of ________, between
the Debenture Issuer and the Debenture Trustee relating to the Debenture
Issuer's junior subordinated debentures [as supplemented by the Supplemental
Indenture] and as [further] amended or supplemented from time to time.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(h).
"Like Amount" has the meaning set forth in Section 3 of Annex
I hereto.
"Liquidation Amount" has the meaning set forth in Section 2 of
Annex I hereto.
"List of Holders" has the meaning set forth in Section 2.2(a)
of Annex I hereto.
"Majority in Liquidation Amount" means, with respect to the
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the Chief Financial Officer,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary. Any Officers' Certificate delivered by
the Trust shall be signed by at least one Administrative Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
5
<PAGE> 12
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Option Closing Date" means the date of closing of any sale of
Additional Securities (as defined in the Purchase Agreement) or, if such term is
not defined in the Purchase Agreement, the date of closing of any sale of
securities to the underwriters named in such Purchase Agreement solely to cover
overallotments.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of the Sponsor, and who shall be reasonably acceptable to the
Property Trustee, provided, that the General Counsel or Assistant General
Counsel of the Sponsor shall be deemed to be reasonably acceptable to the
Trustee.
"Participants" has the meaning specified in Section 7.3(a).
"Paying Agent" has the meaning specified in Section 7.4.
"Payment Amount" has the meaning specified in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in Section
7.1(a).
"Preferred Securities Guarantee" means the Preferred
Securities Guarantee Agreement dated as of ________, of the Sponsor in respect
of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Property Trustee" has the meaning set forth in Section
5.3(a).
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
6
<PAGE> 13
"Purchase Agreement" means the Purchase Agreement for the
offering and sale of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Administrative Trustees or,
if there are only two Administrative Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4.
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property Trustee
with direct responsibility for the administration of this Agreement, including
any vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer or other officer of the Corporate Trust Office of the
Property Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Property Trustee to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Securities" or "Trust Securities" means the Common Securities
and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee
and the Preferred Securities Guarantee.
"Sponsor" means Hercules Incorporated, a Delaware corporation,
or any successor entity resulting from any merger, consolidation, amalgamation
or other business combination, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in
Section 5.7(b)(ii).
"Successor Entity" has the meaning set forth in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in
Section 3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section
3.15(b)(i)(B).
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
7
<PAGE> 14
"Tax Event" means the receipt by the Administrative Trustees
and the Debenture Issuer of a reasoned Opinion of Counsel from counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of this Agreement,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States Federal
income tax with respect to income received or accrued on the Debentures, (ii)
the interest payable by the Debenture Issuer on the Debentures is not, or within
90 days of the date of such opinion will not be, deductible by the Debenture
Issuer, in whole or in part, for United States Federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"10% in Liquidation Amount" means, with respect to the
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Agreement as a trustee, so long as such Person shall continue as Trustee of the
Trust in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in accordance
with the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the Trust Indenture
Act that are required to be part of this Agreement in order for this Agreement
to be qualified under the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Agreement limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Agreement shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide the Property Trustee, unless the Property Trustee is
Registrar for the Securities, (i) within 14 days after each record date for
payment of Distributions, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders of the Securities
("List of Holders") as of such record date, provided that neither the Sponsor
nor the Administrative Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Administrative Trustees on behalf of the Trust, and (ii) at any
other time, within 30 days of receipt by the Trust of a written request for a
List of Holders as of a date no more than 14 days before such List of Holders is
given to the Property Trustee. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
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SECTION 2.3 Reports by the Property Trustee.
Within 60 days after September 1 of each year, commencing September 1,
____, the Property Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent provided for in this Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in Liquidation Amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in aggregate principal amount of the holders of the Debentures (a
"Super Majority") to be waived under the Indenture, the Event of
Default under the Agreement may only be waived by the vote of the
Holders of at least the proportion in aggregate Liquidation Amount of
the Preferred Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding.
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The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Agreement, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Agreement without any further act, vote, or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture (except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Agreement as provided below in this Section
2.6(b)), the Event of Default under the Agreement shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Agreement as provided below
in this Section 2.6(b), the Event of Default under the Agreement may
only be waived by the vote of the Holders of at least the proportion in
aggregate Liquidation Amount of the Common Securities that the relevant
Super Majority represents of the aggregate principal amount of the
Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Agreement and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Agreement, but
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no such waiver shall extend to any subsequent or other default or Event of
Default with respect to the Common Securities or impair any right consequent
thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this Agreement.
The foregoing provisions of this Section 2.6(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of any default with respect to the Securities, transmit by mail,
first class postage prepaid, to the Holders of the Securities and to the
Sponsor, notices of all such defaults actually known to a Responsible Officer of
the Property Trustee, unless such defaults have been cured before the giving of
such notice (the term "defaults" for the purposes of this Section 2.7(a) being
hereby defined to be a Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for (i) a default in the payment
of principal of (or premium, if any) or interest on any of the Debentures or
(ii) any failure by the Company to deliver the required securities or other
rights upon a conversion or exchange election, the Property Trustee shall be
protected in withholding such notice if and so long as a committee of
Responsible Officers of the Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have actual
knowledge of any default except:
(i) a default under Sections 6.01(a) and 6.01(b) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of the Agreement shall
have actual knowledge.
(c) Within ten Business Days after the occurrence of any Event
of Default actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit notice of such Event of Default to the Holders
of the Preferred Securities, the Administrative Trustees and the Sponsor, unless
such Event of Default shall have been cured, waived or otherwise eliminated. The
Sponsor and the Administrative Trustees shall file annually with the Property
Trustee a certification as to whether or not they are in compliance with all the
conditions and covenants applicable to them under this Agreement.
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ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Hercules Trust II" as such name may be
modified from time to time by the Administrative Trustees following written
notice to the Delaware Trustee, the Property Trustee and the Holders of
Securities. The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
Hercules Plaza, 1313 North Market Street, Wilmington, Delaware 19894-0001. On
ten Business Days' prior written notice to the Delaware Trustee, the Property
Trustee and the Holders of Securities, the Administrative Trustees may designate
another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities, (b) use the proceeds from the sale of the Securities
to acquire the Debentures in an aggregate principal amount equal to the
aggregate Liquidation Amount of such Securities, and (c) except as otherwise
limited herein, to engage in only those other activities necessary, advisable or
incidental thereto, including without limitation, those activities specified in
Sections 3.6, 3.8, 3.9, 3.10, 3.11 and/or 3.12.
SECTION 3.4 Authority.
Subject to the limitations provided in this Agreement and to
the specific duties of the Property Trustee, the Administrative Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust. An
action taken by one or more of the Administrative Trustees in accordance with
their powers shall constitute the act of and serve to bind the Trust and an
action taken by the Property Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Agreement.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Trustee Account or as otherwise provided in this
Agreement, legal title to all assets of the Trust shall be vested in the Trust.
The Holders shall not have legal title to any part of the assets of the Trust,
but shall have an undivided beneficial interest in the assets of the Trust.
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SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power,
duty and authority, and are hereby authorized and directed, to cause the Trust
to engage in the following activities:
(a) to execute, deliver, issue and sell the Preferred
Securities and the Common Securities in accordance with this Agreement;
provided, however, that (i) the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common Securities, (ii)
there shall be no interests in the Trust other than the Securities, and (iii)
the issuance of Securities shall be limited to a simultaneous issuance of both
Preferred Securities and Common Securities at the Closing Time and the Option
Closing Date, if any;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(ii) at the direction of the Sponsor, execute and file an
application, prepared by the Sponsor, to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing or quotation of the Preferred Securities;
(iii) execute and deliver letters, documents, or
instruments with DTC and other Clearing Agencies relating to the
Preferred Securities;
(iv) if required, execute and file with the Commission a
registration statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, as the
case may be; and
(v) execute and file any agreement, certificate or other
document which such Administrative Trustee deems necessary or
appropriate in connection with the issuance and sale of the Preferred
Securities;
(c) to acquire the Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of Common Securities;
(d) to cause the Trust to enter into such agreements and
arrangements as may be necessary or desirable in connection with the sale of
Preferred Securities to the underwriters
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thereof and the consummation thereof, and to take all action, and exercise all
discretion, as may be necessary or desirable in connection with the consummation
thereof;
(e) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Tax Event;
(f) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section316(c) of the Trust Indenture Act,
Distributions, voting rights, [conversions, exchanges] and redemptions, and to
issue relevant notices to the Holders of Preferred Securities and Holders of
Common Securities as to such actions and applicable record dates;
(g) to take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of the Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Administrative Trustee;
(l) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, Registrar
for the Securities or to appoint a Paying Agent [or Conversion Agent] for the
Securities as provided in Section 7.4 except for such time as such power to
appoint a Paying Agent [ or Conversion Agent] is vested in the Property Trustee;
(n) to give prompt written notice to the Property Trustee and
to Holders of the Securities of any notice received from the Debenture Issuer of
its election to defer payments of interest on the Debentures by extending the
interest payment period under the Indenture;
(o) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which
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such existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for which
the Trust was created;
(p) to take any action (provided that such action does not
materially adversely affect the interests of Holders), not inconsistent with
this Agreement or with applicable law, that the Administrative Trustees
determine in their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.6, including, but not
limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
Federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the Debenture Issuer
for United States Federal income tax purposes;
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust; and
(r) to execute and deliver and record, file or register, as
applicable, all documents, certificates, agreements or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary, advisable or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Administrative Trustees
shall not take any action that is inconsistent with the purposes and functions
of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall
have none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust and the Trustees (including the Property Trustee
and the Delaware Trustee) shall not, and the Administrative Trustees shall cause
the Trust not to, engage in any activity other than as required or authorized by
this Agreement. In particular, the Trust shall not:
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(i) invest any proceeds received by the Trust from holding
the Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Agreement and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose
or execute any mortgage in respect of, or pledge, any Trust property;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(vii) so long as any Debentures are held by the Property
Trustee, the Trustees shall not (A) direct the time, method and place
of conducting any proceeding with respect to any remedy available to
the Debenture Trustee, or exercise any trust or power conferred upon
the Debenture Trustee with respect to the Debentures, (B) waive any
past default that is waivable under the Indenture, (C) exercise any
right to rescind or annul a declaration of acceleration of the maturity
of the principal of the Debentures, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where
such consent shall be required, without, in each case, obtaining (1)
the prior approval of the Holders of a Majority in Liquidation Amount
of all outstanding Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior approval of each Holder of
Securities and (2) an Opinion of Counsel delivered to the Trust from
tax counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for
United States Federal income tax purposes on account of such action;
(viii) revoke any action previously authorized or approved
by a vote of the Holders of Preferred Securities except by subsequent
vote of such Holders;
(ix) revoke any action previously authorized or approved by
a vote of the Holders of Common Securities except by subsequent vote of
such Holders; or
(x) undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States
Federal income tax purposes as a grantor trust.
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SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Trust and the Holders of the Securities. The right, title and interest of
the Property Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Property Trustee in accordance with Section
5.7. Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
[The Trust and the Property Trustee shall not convert any
Debentures held by either of them except pursuant to a notice of conversion
delivered to the Conversion Agent by a Holder of Securities.]
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of
and under the exclusive control of the Property Trustee on behalf of
the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Property Trustee,
deposit such funds into the Property Trustee Account and make payments
or cause the Paying Agent to make payments to the Holders of the
Preferred Securities and Holders of the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in
accordance with this Agreement. The Property Trustee Account shall be
an account that is maintained with a banking institution the rating on
whose long-term unsecured indebtedness is at least equal to the rating
assigned to the Preferred Securities by a "nationally recognized
statistical rating organization", as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred
Securities and the Common Securities to the extent the Debentures are
redeemed or mature;
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of
Securities upon the occurrence of certain events; and
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(iv) take such ministerial action as may be requested by
the Administrative Trustees in connection with the winding up of the
affairs of or liquidation of the Trust in accordance with this
Agreement and the preparation, execution and filing of a certificate of
cancellation or other appropriate certificates with the Secretary of
State of the State of Delaware and other appropriate governmental
authorities.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of this Agreement and the Securities.
(e) Subject to Section 3.9, the Property Trustee shall take
any Legal Action which arises out of or in connection with an Event of Default
of which a Responsible Officer of the Property Trustee has actual knowledge or
the Property Trustee's duties and obligations under this Agreement or the Trust
Indenture Act and, if the Property Trustee shall have failed to take such Legal
Action, the Holders of the Preferred Securities in at least an aggregate
Liquidation Amount equal to the specified percentage of Holders of Debentures
entitled to take such Legal Action may, to the fullest extent permitted by law,
take such Legal Action without first proceeding against the Property Trustee or
the Trust; provided however, that if an Event of Default has occurred and is
continuing and such event is attributable [either] to [(i)] the failure of the
Debenture Issuer to pay the principal of or premium, if any, or interest on the
Debentures on the date such principal, premium, if any, or interest is otherwise
payable (or in the case of redemption, on the redemption date) [or (ii) the
failure by the Sponsor to deliver the required securities upon an appropriate
conversion right election], then a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of or premium, if any, or interest on the Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder on or after the respective due date specified in the
Debentures [or for enforcement of such conversion rights, as the case may be] (a
"Direct Action"). Except as provided in the preceding sentence, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities and this Agreement; or
(ii) a successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 5.7 (a
"Successor Property Trustee").
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the
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Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of the Securities and this Agreement.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent,
the Property Trustee may authorize one or more Persons to act as additional
Paying Agents and to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
such additional Paying Agent may be removed by the Property Trustee at any time
the Property Trustee remains as Paying Agent and a successor Paying Agent or
additional Paying Agents may be (but are not required to be) appointed at any
time by the Property Trustee while the Property Trustee is acting as Paying
Agent.
(j) Subject to this Section 3.8, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.6.
Notwithstanding anything expressed or implied to the contrary
in this Agreement or any Annex or Exhibit hereto, the Property Trustee must
exercise the powers set forth in this Section 3.8 in a manner that is consistent
with the purposes and functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event
of Default and after the curing or waiving of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Agreement and in the Securities and no implied covenants or
obligations shall be read into this Agreement against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, its own bad faith or its own willful misconduct,
except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
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(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Agreement and in the Securities and the Property
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement and in the Securities, and no implied covenants or
obligations shall be read into this Agreement against the
Property Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property 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 Property Trustee and conforming to
the requirements of this Agreement; provided, however, that in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Property Trustee, the Property Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Agreement (but shall not
be required to confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
Liquidation Amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Agreement;
(iv) no provision of this Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Agreement or indemnity reasonably satisfactory to the Property Trustee
against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safekeeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Agreement and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or sufficiency
of the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
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(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Sponsor. Money held by the Property Trustee need
not be segregated from other funds held by it except in relation to the
Property Trustee Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Agreement, nor shall the
Property Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this Agreement may be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Agreement, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees; and the Property
Trustee shall have the right at any time to seek instructions
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concerning the administration of this Agreement from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at
the request or direction of any Holder, unless such Holder shall have
provided to the Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs, expenses
(including reasonable attorneys' fees and expenses and the expenses of
the Property Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by
the Property Trustee in respect of the time, method or place of
conducting any proceeding for any remedy available to the Property
Trustee or the exercise of any trustor power conferred on the Property
Trustee under this Agreement;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents, custodians, nominees or attorneys and the
Property Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Agreement, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Securities
as would be entitled to direct the Property Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on, or acting in accordance with, such
instructions;
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(xi) except as otherwise expressly provided by this
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Agreement; and
(xii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement.
(b) No provision of this Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
(c) It is expressly understood and agreed by the parties hereto
that in fulfilling its obligations as Property Trustee hereunder on behalf of
the Trust, (i) any agreements or instruments executed or delivered by The Chase
Manhattan Bank are executed and delivered not in its individual capacity but
solely as Property Trustee under this Agreement in the exercise of the powers
and authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as representations, warranties, covenants, undertakings and
agreements by The Chase Manhattan Bank in its individual capacity but is made
and intended for the purpose of binding only the Trust, and (iii) under no
circumstances (except with respect to funds delivered to it relating to payments
in respect of the Securities) shall The Chase Manhattan Bank in its individual
capacity be personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Agreement except if such breach or failure is due to any negligence, bad faith
or willful misconduct of the Property Trustee.
SECTION 3.11 Delaware Trustee.
(a) Notwithstanding any other provision of this Agreement
other than Section 5.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrative Trustees or the Property Trustee
described in this Agreement (except as required under the Business Trust Act).
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
(b) It is expressly understood and agreed by the parties hereto
that in fulfilling its obligations as Delaware Trustee hereunder on behalf of
the Trust, (i) any agreements or instruments executed or delivered by Chase
Manhattan Bank Delaware are executed and
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delivered not in its individual capacity but solely as Delaware Trustee under
this Agreement in the exercise of the powers and authority conferred and vested
in it, (ii) each of the representations, undertakings and agreements herein made
on the part of the Trust is made and intended not as representations,
warranties, covenants, undertakings and agreements by Chase Manhattan Bank
Delaware in its individual capacity but is made and intended for the purpose of
binding only the Trust, and (iii) under no circumstances shall Chase Manhattan
Bank Delaware in its individual capacity be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or failure
of any obligation, representation, warranty, or covenant made or undertaken by
the Trust under this Agreement except if such breach or failure is due to any
negligence, bad faith or willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or
applicable law, each Administrative Trustee, individually, is authorized to
execute and deliver on behalf of the Trust any documents, agreements,
instruments or certificates that the Administrative Trustees have the power and
authority to execute and deliver pursuant to this Agreement.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Agreement and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Agreement or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions of
Article VIII hereof, shall have existence until [35 years from execution].
SECTION 3.15 Mergers.
(a) The Trust may not merge with or into, convert into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
Person, except as described in Section 3.15(b) and (c) and except with respect
to the distribution of all Debentures to Holders of Securities pursuant to
Section 8.1(a)(iii).
(b) The Trust may, at the request of the Sponsor, with the
consent of the Administrative Trustees or, if there are more than two, a
majority of the Administrative Trustees and without the consent of the Holders
of the Securities, the Delaware Trustee or the Property Trustee, merge with or
into, convert into, consolidate, amalgamate, or be replaced by, or convey,
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transfer or lease its properties and assets as an entirety or substantially as
an entirety to, a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Securities rank with
respect to Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the
Property Trustee with respect to the Debentures;
(iii) the Successor Securities (excluding any securities
substituted for any Common Securities) are listed, quoted or included
for trading, or any Successor Securities will be listed, quoted or
included for trading, upon notification of issuance, on any national
securities exchange or with any other organization on which the
Preferred Securities are then listed, quoted or included;
(iv) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) or the Debentures to be
downgraded or placed under surveillance or review by any nationally
recognized statistical rating organization that publishes a rating on
the Preferred Securities or the Debentures;
(v) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of the Securities
(including the holders of any Successor Securities) in any material
respect (other than with respect to any dilution of the interests of
such Holders or holders, as the case may be, in the Successor Entity);
(vi) the Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Sponsor
has received an opinion of a nationally recognized independent counsel
to the Trust experienced in such matters to the effect that:
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(A) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including the holders of any
Successor Securities) in any material respect (other than with
respect to any dilution of the interests of such Holders or
holders, as the case may be, in the Successor Entity); and
(B) following such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer
or lease, neither the Trust nor the Successor Entity, if any,
will be required to register as an Investment Company; and
(viii) the Sponsor or any permitted successor or assignee
owns all of the common securities of the Successor Entity and
guarantees the obligations of the Successor Entity under the Successor
Securities at least to the extent provided by the Preferred Securities
Guarantee and the Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the
Securities, merge with or into, convert into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, any other Person or permit any
other Person to merge with or into, consolidate, amalgamate, or replace it if
such merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity, if any, not to
be classified as a grantor trust for United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time and on any Option Closing Date, the
Sponsor will purchase all of the Common Securities then issued by the Trust, in
an amount equal to at least 3% of the total capital of the Trust, at the same
time as the Preferred Securities are issued and sold. The aggregate Liquidation
Amount of Common Securities at any time shall not be less than 3% of the total
capital of the Trust.
For so long as the Preferred Securities remain outstanding,
the Sponsor covenants (i) to maintain, directly or indirectly, 100% ownership of
the Common Securities; provided, however, that any permitted successor of the
Sponsor under the Indenture may succeed to the Sponsor's interest in the Common
Securities, (ii) to use its best efforts to cause the Trust (a) to remain a
business trust, except in connection with a distribution of Debentures to the
Holders of Securities in liquidation of the Trust, the [conversion, exchange or]
redemption of all the Securities, or certain mergers, consolidations or
amalgamations, each as permitted by this
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Agreement, and not to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by this Agreement, and (b) to otherwise continue to be
classified as a grantor trust for United States federal income tax purposes,
(iii) to use its best efforts to ensure that the Trust shall not be an
Investment Company for purposes of the Investment Company Act, (iv) to use its
best efforts to cause each Holder of Securities to be treated as owning an
undivided beneficial interest in the Debentures and (v) to take no action which
would cause the dissolution, liquidation or winding up of the Trust, except as
otherwise provided in this Agreement.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust, execute and file with
the Commission the registration statement on Form S-3 pertaining to the
Preferred Securities, including any amendments thereto and to register the
Preferred Securities Guarantee related thereto;
(b) to determine the jurisdictions in which to take
appropriate action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must be
taken by the Trust, and advise the Trust of actions it must take, and prepare
for execution and filing any documents to be executed and filed by the Trust, as
the Sponsor deems necessary or advisable in order to comply with the applicable
laws of any such jurisdictions;
(c) if deemed necessary or advisable by the Sponsor, to
prepare for filing by the Trust an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for listing or
quotation of the Preferred Securities;
(d) to prepare for filing by the Trust, execute and file with
the Commission a registration statement on Form 8-A, including any amendments
thereto, relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, as the case may be, including any amendments
thereto; and
(e) to negotiate the terms of, execute, enter into and deliver
the Purchase Agreement providing for the sale of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of
Preferred Securities to bring one or more Direct Actions under the circumstances
specified in this Agreement.
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ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities;
provided, however, that, the number of Trustees shall in no event be less than
two (2); provided further that (1) one Trustee shall be a Person meeting the
requirements of Section 5.2 (the "Delaware Trustee"); (2) there shall be at
least one Trustee who is an employee or officer of, or is affiliated with the
Sponsor (an "Administrative Trustee"); and (3) one Trustee shall be the Property
Trustee for so long as this Agreement is required to qualify as an indenture
under the Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements. Notwithstanding the above,
unless an Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust's property may at the
time be located, the Holders of a Majority in Liquidation Amount of the Common
Securities acting as a class at a meeting of the Holders of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more Persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of the Trust's property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of this Agreement. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
For so long as required by the Business Trust Act, the
Delaware Trustee shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law, provided, however, if the Property Trustee has its principal
place of business in the State of Delaware and
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otherwise meets the requirements of applicable law, then the Property Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the "Property
Trustee") which shall act as Property Trustee and which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an indenture trustee under the
Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by federal,
state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section 5.3(a)(ii),
the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common Securities (as
if it were the obligor referred to in Section 310(b) of the Trust Indenture Act)
shall in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Agreement for purposes of clause (i) of the first
provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
Telecopier: (215) 988-8372
Telephone: (215) 988-1329
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SECTION 5.4 Certain Qualifications of Administrative Trustees and
Delaware Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless
the Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
Israel J. Floyd
Jan M. King
Stuart C. Shears
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Telephone: (302) 594-5000
Telecopier: (302) 594-5210
(a) Except as expressly set forth in this Agreement and except
if a meeting of the Administrative Trustees is called with respect to any matter
over which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Unless otherwise determined by the Administrative
Trustees, and except as otherwise required by the Business Trust Act or
applicable law, any Administrative Trustee acting alone is authorized to execute
on behalf of the Trust any documents which the Administrative Trustees have the
power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Department
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Telecopier: (302) 984-4903
Telephone: (302) 428-3372
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be
continuing after the issuance of any Securities, by vote of the Holders
of a Majority in Liquidation Amount of the Common Securities voting as
a class at a meeting of the Holders of the Common Securities; and
(iii) if an Event of Default shall have occurred and be
continuing after the issuance of the Securities, with respect to the
Property Trustee or the Delaware Trustee, by vote of Holders of a
Majority in Liquidation Amount of the Preferred Securities voting as a
class at a meeting of Holders of the Preferred Securities (it being
understood that in no event will the Holders of the Preferred
Securities have the right to vote, appoint, remove or replace the
Administrative Trustees, which voting rights are exclusively vested in
the Holder of the Common Securities).
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Property Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Property Trustee and delivered to the Administrative Trustees
and the Sponsor; and
(c) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.7(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the removed Delaware Trustee, the Property Trustee (if the
removed Delaware Trustee is not also the Property Trustee), the Administrative
Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the other Trustees, the Sponsor and the Trust, which resignation shall take
effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
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(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor, the Delaware Trustee (if the resigning
Property Trustee is not also the Delaware Trustee) and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the Holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Property Trustee (if the resigning Delaware Trustee is not also the
Property Trustee), the Sponsor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities or, if an Event of
Default shall have occurred and be continuing after the issuance of the
Securities, the Holders of the Preferred Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Property Trustee,
as the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.7.
(f) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.7 within 60 days after delivery of an instrument of resignation or
removal, the Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrative
Trustees or, if there are more than two, a majority of the Administrative
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 5.7.
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SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust or to
terminate this Agreement. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 5.7, the Administrative
Trustees in office, regardless of their number, shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Agreement.
SECTION 5.10 Meetings.
If there is more than one Administrative Trustee, meetings of
the Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Agreement, any action of the Administrative Trustees
may be taken at a meeting by vote of a majority of the Administrative Trustees
present (whether in person or by telephone) and eligible to vote with respect to
such matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Administrative Trustees. In the event there is
only one Administrative Trustee, any and all action of such Administrative
Trustee shall be evidenced by a written consent of such Administrative Trustee.
SECTION 5.11 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6, including any registration statement or amendment
thereto filed with the Commission; and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to officers of the Trust the doing
of such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or
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otherwise as the Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the provisions of
this Agreement.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee or
any Administrative Trustee that is not a natural person, as the case may be, may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee, as the case may be, shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
the Property Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the case may be,
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, such successor shall
notify the Sponsor and the Trust promptly of its succession.
SECTION 5.13 Compensation.
The Sponsor agrees:
(a) to pay to the Property Trustee and the Delaware Trustee
from time to time such compensation as shall be agreed in writing between the
Company and the Property Trustee and the Delaware Trustee, respectively, for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust); and
(b) to reimburse the Property Trustee and the Delaware Trustee
upon their request for reasonable expenses, disbursements and advances incurred
or made by the Property Trustee or the Delaware Trustee, respectively, in
accordance with any provision of this Agreement (including the reasonable
compensation and the expenses and advances of its agents and counsel), except
any such expense or advance as may be attributable to their negligence, willful
misconduct or bad faith.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. Distributions shall be
made on the Preferred Securities and the Common Securities in accordance with
the respective terms and preferences set forth herein and in Annex I. If and to
the extent that the Debenture Issuer makes a payment of interest (including
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any compounded interest and additional interest), premium and/or principal on
the Debentures held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed, to the
extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall on behalf of the Trust
issue one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (the "Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities"). The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this
Agreement, the Securities so issued shall be validly issued, fully paid and
non-assessable.
(d) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Agreement, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Agreement.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by
an Administrative Trustee. In case any Administrative Trustee of the Trust who
shall have signed any of the Securities shall cease to be such Administrative
Trustee before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the Person who signed such
Securities had not ceased to be such Administrative Trustee; and any Securities
may be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Administrative Trustees of the Trust,
although at the date of the execution and delivery of this Agreement any such
person was not an Administrative Trustee.
(b) One Administrative Trustee shall sign the Preferred
Securities for the Trust by manual or facsimile signature.
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A Preferred Security shall not be valid until authenticated by
the manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Agreement. A Common Security shall be valid upon
execution by an Administrative Trustee without any act of the Property Trustee.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Preferred Securities for
original issue.
The aggregate number of Preferred Securities outstanding at
any time shall not exceed the number set forth in the terms in Annex I hereto
except as provided in Section 7.6.
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Preferred Securities. An authenticating
agent may authenticate Preferred Securities whenever the Property Trustee may do
so. Each reference in this Agreement to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee hereunder with respect to the Sponsor or an
Affiliate.
SECTION 7.3 Form and Dating.
The Preferred Securities and the Property Trustee's
certificate of authentication shall be substantially in the form of Exhibit A-1
and the Common Securities shall be substantially in the form of Exhibit A-2,
each of which is hereby incorporated in and expressly made a part of this
Agreement. The Securities may be in definitive or global form and may be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to an Administrative Trustee, as evidenced by the
execution thereof. The Securities may have letters, CUSIP or other numbers,
notations or other marks of identification or designation and such legends or
endorsements required by law, stock exchange or quotation system rule,
agreements to which the Trust is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Trust). An
Administrative Trustee, at the direction of the Sponsor, shall furnish any such
legend not contained in Exhibits A-1 or A-2 to the Property Trustee in writing.
Each Preferred Security shall be dated the date of its authentication. The terms
and provisions of the Securities set forth in Annex I and the forms of
Securities set forth in Exhibits A-1 and A-2 are part of the terms of this
Agreement and to the extent applicable, the Property Trustee and the Sponsor, by
their execution and delivery of this Agreement, expressly agree to such terms
and provisions and to be bound thereby.
The following four paragraphs shall apply only to any Global
Preferred Securities:
The Preferred Securities shall be issued in the form of one or
more permanent global Securities in definitive, fully registered form without
Distribution coupons with the appropriate global legends set forth in Exhibit
A-1 hereto (a "global Preferred Security"), which shall be deposited on behalf
of the purchasers of the Preferred Securities represented thereby
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with the Property Trustee, as custodian for the Clearing Agency, and registered
in the name of the Clearing Agency or a nominee of the Clearing Agency, duly
executed by the Trust and authenticated by the Property Trustee as hereinafter
provided. The number of Preferred Securities represented by the Global Preferred
Security may from time to time be increased or decreased by adjustments made on
the records of the Property Trustee and the Clearing Agency or its nominee as
hereinafter provided. The Holder of a Global Preferred Security may grant
proxies and otherwise authorize any Person, including Participants and Persons
that may hold interests through Participants, to take any action which such
Holder is entitled to take under this Agreement or the Securities.
An Administrative Trustee shall execute and the Property
Trustee shall, in accordance with this Section 7.3, authenticate and make
available for delivery initially one or more Global Preferred Securities that
(i) shall be registered in the name of Cede & Co. or other nominee of such
Clearing Agency and (ii) shall be delivered by the Property Trustee to such
Clearing Agency or pursuant to such Clearing Agency's written instructions or
held by the Property Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Agreement with respect to any
Global Preferred Security held on their behalf by the Clearing Agency or by the
Property Trustee as the custodian of the Clearing Agency or under such Global
Preferred Security, and the Clearing Agency may be treated by the Trust, the
Property Trustee and any agent of the Trust or the Property Trustee as the
absolute owner of such Global Preferred Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Property Trustee or any agent of the Trust or the Property Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Clearing Agency or impair, as between the Clearing Agency and its
Participants, the operation of customary practices of such Clearing Agency
governing the exercise of the rights of a holder of a beneficial interest in any
Global Preferred Security.
Except as provided in Section 9.2, owners of beneficial
interests in a Global Preferred Security will not be entitled to receive
physical delivery of Preferred Securities in definitive form ("Definitive
Preferred Securities").
SECTION 7.4 Registrar and Paying Agent.
The Trust shall maintain in the Borough of Manhattan, The City
of New York, (i) an office or agency where Preferred Securities may be presented
for registration of transfer ("Registrar") and (ii) an office or agency where
Preferred Securities may be presented for payment ("Paying Agent") [ and (iii)
an office or agency where Preferred Securities may be presented for conversion
or exchange ("Conversion Agent")]. The Registrar shall keep a register of the
Preferred Securities and of their transfer. The Trust may appoint the Registrar
and the Paying Agent [and the Conversion Agent] and may appoint one or more
co-registrars and one or more additional paying agents [and conversion agents]
in such other locations as it shall determine. The term "Registrar" includes any
additional registrar and the term "Paying Agent"
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includes any additional paying agent [and the term "Conversion Agent" includes
any additional conversion agent]. The Trust may change any Registrar or Paying
Agent [or Conversion Agent] without prior notice to any Holder. The
Administrative Trustees shall notify the Property Trustee of the name and
address of any Agent not a party to this Agreement. If the Trust fails to
appoint or maintain another entity as Registrar or Paying Agent [or Conversion
Agent], the Property Trustee shall act as such, and as Paying Agent the Property
Trusteee shall have the rights set forth in Section 3.8(i). The Trust or any of
its Affiliates may act as Registrar or Paying Agent [or Conversion Agent]. The
Trust shall act as Registrar and Paying Agent [and Conversion Agent] for the
Common Securities.
Any Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' prior written notice to the Property Trustee, the Administrative
Trustees and the Sponsor. In the event that the Property Trustee shall no longer
be the Paying Agent, the Trust shall appoint a successor Paying Agent (which
shall be a bank or trust company acceptable to the Sponsor) to act as Paying
Agent.
The Trust initially appoints the Property Trustee as Registrar
and Paying Agent [and Conversion Agent] for the Preferred Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the
Property Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Property Trustee all money held by the Paying
Agent for the payment of liquidation amounts or Distributions on the Securities
and will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee. The
Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment over
to the Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the money. If the
Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If a Holder of a Security claims that a Security owned by it
has been lost, destroyed or wrongfully taken or if such Security is mutilated
and is surrendered to the Trust or, in the case of the Preferred Securities, to
the Property Trustee, an Administrative Trustee shall execute and the Property
Trustee shall authenticate and make available for delivery a replacement
Security if the Property Trustee's and the Trust's requirements, as the case may
be, are met. An indemnity bond must be provided by the Holder which, in the
judgment of the Property Trustee, is sufficient to protect the Trustees, the
Sponsor or any authenticating agent
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from any loss which any of them may suffer if a Security is replaced. The Trust
may charge such Holder for its expenses in replacing a Security.
Every replacement Security is an additional beneficial
interest in the Trust.
SECTION 7.7 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the
Preferred Securities authenticated by the Property Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Preferred Security is replaced, paid or purchased
pursuant to Section 7.6 hereof, it ceases to be outstanding unless the Property
Trustee receives proof satisfactory to it that the replaced, paid or purchased
Preferred Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with
the terms of this Agreement, they cease to be outstanding and Distributions
thereon shall cease to accumulate.
A Preferred Security does not cease to be outstanding because
the Trust, the Sponsor or an Affiliate of the Sponsor holds such Preferred
Security.
SECTION 7.8 Preferred Securities in Treasury.
In determining whether the Holders of the required amount of
Preferred Securities have concurred in any direction, waiver or consent,
Preferred Securities owned by the Trust, the Sponsor or an Affiliate of the
Sponsor, as the case may be, shall be disregarded and deemed not to be
outstanding, except that for the purposes of determining whether the Property
Trustee shall be fully protected in relying on any such direction, waiver or
consent, only Preferred Securities which a Responsible Officer of the Property
Trustee actually knows are so owned shall be so disregarded.
SECTION 7.9 Temporary Securities.
Until Definitive Securities are ready for delivery, the Administrative
Trustees may prepare and, in the case of the Preferred Securities, the Property
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations that
the Trust considers appropriate for temporary Securities. Without unreasonable
delay, the Administrative Trustees shall prepare and, in the case of the
Preferred Securities, the Property Trustee shall authenticate Definitive
Securities in exchange for temporary Securities.
SECTION 7.10 Cancellation.
The Trust at any time may deliver Preferred Securities to the
Property Trustee for cancellation. The Registrar and Paying Agent shall forward
to the Property Trustee any
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Preferred Securities surrendered to them for registration of transfer,
redemption, exchange [, conversion] or payment. The Property Trustee shall
promptly cancel all Preferred Securities surrendered for registration of
transfer, redemption, exchange, payment, replacement [, conversion] or
cancellation and shall dispose of cancelled Preferred Securities as the Trust
directs, provided that the Property Trustee shall not be obligated to destroy
Preferred Securities. The Trust may not issue new Preferred Securities to
replace Preferred Securities that it has paid or redeemed or that have been
delivered to the Property Trustee for cancellation or that any Holder has
exchanged [or converted].
SECTION 7.11 CUSIP Numbers.
The Trust, in issuing the Preferred Securities, may use
"CUSIP" numbers (if then generally in use), and, if so, the Property Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders
of Preferred Securities; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Preferred Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Preferred Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Sponsor will promptly notify the
Property Trustee of any change in the CUSIP numbers.
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ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall automatically dissolve upon the first to
occur of the following events:
(i) the bankruptcy of the Sponsor;
(ii) (A) the filing of a certificate of dissolution or
liquidation or its equivalent with respect to the Sponsor or (B) the
revocation of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) the distribution of a Like Amount of the Debentures
to the Holders of the Securities, provided that the Property Trustee
has received written notice from the Sponsor directing the Property
Trustee to dissolve the Trust (which direction is optional and, except
as otherwise expressly provided herein, within the discretion of the
Sponsor), and provided, further, that such dissolution is conditioned
on the receipt by the Administrative Trustees' receipt of an opinion of
an independent tax counsel experienced in such matters (a "No
Recognition Opinion") to the effect that the Holders of the Securities
will not recognize any gain or loss for United States Federal income
tax purposes as a result of the dissolution of the Trust and the
distribution of the Debentures;
(iv) the entry of a decree of judicial dissolution of the
Trust by a court of competent jurisdiction;
(v) the [conversion, exchange or] redemption of all of the
Securities and the payment to the Holders of any and all amounts
necessary therefor, all in accordance with the terms of the Securities;
or
(vi) the expiration of the term of the Trust provided in
Section 3.14.
(b) As soon as is practicable upon completion of winding up of
the Trust following the occurrence of an event referred to in Section 8.1(a),
the Administrative Trustees shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in accordance
with the Business Trust Act.
(c) The provisions of Section 3.9 and Article X shall survive
the termination of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Agreement and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Agreement shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) To the fullest extent permitted by law, the Sponsor may
not transfer the Common Securities except for any transfer (whether voluntarily
or by operation of law) permitted under Article 5 of the Indenture.
(d) The Administrative Trustees shall provide for the
registration of Securities and of the transfer of Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Administrative Trustees may require) in respect of any tax or other governmental
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Securities, the Administrative Trustees shall cause one or
more new Securities to be issued in the name of the designated transferee or
transferees. Every Security surrendered for registration of transfer or exchange
[or for conversion,] shall be accompanied by a written instrument of transfer in
form satisfactory to the Administrative Trustees duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Security surrendered for
registration of transfer [or for conversion,] shall be canceled by the
Administrative Trustees. A transferee of a Security shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Security. By acceptance of a Security, each transferee
shall be deemed to have agreed to be bound by this Agreement.
SECTION 9.2 Transfer Procedures and Restrictions
(a) Transfer and Exchange of Definitive Preferred Securities.
When Definitive Preferred Securities are presented to the Registrar:
(x) to register the transfer of such Definitive Preferred
Securities; or
(y) to exchange such Definitive Preferred Securities which
became mutilated, destroyed, defaced, stolen or lost, for an equal
liquidation amount of Definitive Preferred Securities,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Preferred Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a
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written instrument of transfer in form reasonably satisfactory to the Property
Trustee and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(b) Transfer of a Definitive Preferred Security for a
Beneficial Interest in a Global Preferred Security. Upon receipt by the Property
Trustee of a Definitive Preferred Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Property
Trustee, together with written instructions directing the Property Trustee to
make, or to direct the Clearing Agency to make, an adjustment on its books and
records with respect to the Global Preferred Security to reflect an increase in
the Liquidation Amount of the Preferred Securities represented by such Global
Preferred Security, then the Property Trustee shall cancel such Definitive
Preferred Security and cause, or direct the Clearing Agency to cause, the
aggregate Liquidation Amount of Preferred Securities represented by the
appropriate Global Preferred Security to be increased accordingly. If no Global
Preferred Securities are then outstanding, an Administrative Trustee shall
execute on behalf of the Trust and the Property Trustee shall authenticate, upon
written order of any Administrative Trustee, a Global Preferred Security
representing an appropriate Liquidation Amount of Preferred Securities.
(c) Transfer and Exchange of Global Preferred Securities.
Subject to Section 9.2(d), the transfer and exchange of Global Preferred
Securities or beneficial interests therein shall be effected through the
Clearing Agency in accordance with this Agreement and the procedures of the
Clearing Agency therefor.
(d) Transfer of a Beneficial Interest in a Global Preferred
Security for a Definitive Preferred Security.
(i) A Global Preferred Security deposited with the Clearing
Agency or with the Property Trustee as custodian for the Clearing
Agency pursuant to Section 7.3 shall be transferred to the beneficial
owners thereof in the form of Definitive Preferred Securities only if
such transfer complies with Section 9.2(c) and (1) the Clearing Agency
notifies the Trust that it is unwilling or unable to continue as
Clearing Agency for such Global Preferred Security or if at any time
such Clearing Agency ceases to be a "clearing agency" registered under
the Exchange Act and, in each case, a clearing agency is not appointed
by the Sponsor within 90 days of receipt of such notice or of becoming
aware of such condition, (2) a Default or an Event of Default has
occurred and is continuing or (3) the Trust at its sole discretion
elects to cause the issuance of Definitive Preferred Securities.
(ii) Any Global Preferred Security that is transferable to the
beneficial owners thereof in the form of Definitive Preferred
Securities pursuant to this Section 9.2(d) shall be surrendered by the
Clearing Agency to the Property Trustee located in the Borough of
Manhattan, The City of New York, to be so transferred, in whole or from
time to time in part, without charge, and the Property Trustee shall
authenticate and make available for delivery, upon such transfer of
each portion of such Global Preferred Security, an equal aggregate
Liquidation Amount of Securities of authorized denominations in the
form of
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Definitive Preferred Securities. Any portion of a Global Preferred
Security transferred pursuant to this Section shall be registered in
such names as the Clearing Agency shall direct.
In the event of the occurrence of any of the events specified in clause
(i) above, the Administrative Trustees will promptly make available to the
Property Trustee a reasonable supply of Definitive Preferred Securities in fully
registered form without Distribution coupons.
(e) Restrictions on Transfer and Exchange of Global Preferred
Securities. Notwithstanding any other provisions of this Agreement (other than
the provisions set forth in subsection (d) of this Section 9.2), a Global
Preferred Security may not be transferred as a whole except by the Clearing
Agency to a nominee of the Clearing Agency or another nominee of the Clearing
Agency or by the Clearing Agency or any such nominee to a successor Clearing
Agency or a nominee of such successor Clearing Agency.
(f) Cancellation or Adjustment of Global Preferred Security.
At such time as all beneficial interests in a Global Preferred Security have
either been exchanged for Definitive Preferred Securities to the extent
permitted by this Agreement or redeemed, repurchased [, converted or otherwise
exchanged] or canceled in accordance with the terms of this Agreement, such
Global Preferred Security shall be returned to the Clearing Agency for
cancellation or retained and canceled by the Property Trustee. At any time prior
to such cancellation, if any beneficial interest in a Global Preferred Security
is exchanged for Definitive Preferred Securities, Preferred Securities
represented by such Global Preferred Security shall be reduced and an adjustment
shall be made on the books and records of the Property Trustee (if it is then
the custodian for such Global Preferred Security) with respect to such Global
Preferred Security, by the Property Trustee or the Securities Custodian, to
reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Preferred Securities.
(i) To permit registrations of transfers and exchanges, an
Administrative Trustee shall execute and the Property Trustee shall
authenticate Definitive Preferred Securities and Global Preferred
Securities at the Registrar's request in accordance with the terms of
this Agreement.
(ii) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as the Trust
or the Sponsor may require) in respect of any tax or other governmental
charge that may be imposed in relation to it.
(iii) The Registrar shall not be required to register the
transfer of or exchange of (a) Preferred Securities during a period
beginning at the opening of business 15 days before the day of mailing
of a notice of redemption or any notice of selection of Preferred
Securities for redemption and ending at the close of business on the
day of such mailing; or (b) any Preferred Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Preferred Security being redeemed in part.
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(iv) All Preferred Securities issued upon any registration of
transfer or exchange pursuant to the terms of this Agreement shall
evidence the same security and shall be entitled to the same benefits
under this Agreement as the Preferred Securities surrendered upon such
registration of transfer or exchange.
(h) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Preferred Security, a
Participant in the Clearing Agency or other Person with respect to the
accuracy of the records of the Clearing Agency or its nominee or of any
Participant thereof, with respect to any ownership interest in the
Preferred Securities or with respect to the delivery to any
Participant, beneficial owner or other Person (other than the Clearing
Agency) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Preferred
Securities. All notices and communications to be given to the Holders
and all payments to be made to Holders under the Preferred Securities
shall be given or made only to or upon the order of the Holders (which
shall be the Clearing Agency or its nominee in the case of a Global
Preferred Security). The rights of beneficial owners in any Global
Preferred Security shall be exercised only through the Clearing Agency
subject to the applicable rules and procedures of the Clearing Agency.
The Property Trustee may conclusively rely and shall be fully protected
in relying upon information furnished by the Clearing Agency or any
agent thereof with respect to its Participants and any beneficial
owners.
(ii) The Property Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Agreement or under
applicable law with respect to any transfer of any interest in any
Preferred Security (including any transfers between or among Clearing
Agency Participants or beneficial owners in any Global Preferred
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Agreement, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
SECTION 9.3 Deemed Security Holders.
The Trust, the Trustees, the Registrar and the Paying Agent
may treat the Person in whose name any Security shall be registered on the books
and records of the Trust as the sole owner and Holder of such Security for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Security on the part of any Person other than such Holder,
regardless of any notice to the contrary.
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SECTION 9.4 Book Entry Interests.
Global Preferred Securities shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of the
Clearing Agency, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Preferred Securities, except as
provided in Section 9.2. Unless and until Definitive Preferred Securities have
been issued to the Preferred Security Beneficial Owners pursuant to Section 9.2:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Agreement (including the
payment of Distributions on the Global Preferred Securities and
receiving approvals, votes or consents hereunder) as the Holder of the
Preferred Securities and the sole holder of the Global Certificates and
shall have no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Agreement, the provisions of
this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or the
Participants, including receiving and transmitting payments of
Distributions on the Global Certificates to such Participants. DTC will
make book entry transfers among the Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required to be given by a Trustee under this Agreement, such
Trustee shall give all such notices and communications specified herein to be
given to the Holders of Global Preferred Securities to the Clearing Agency and
shall have no notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to the Preferred Securities.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Agreement, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Agreement or by law,
except that this provision shall not be deemed to modify Section 3.9(b).
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
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SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Agreement shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Person and any Indemnified Person; or
(ii) whenever this Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Agreement or by applicable law.
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SECTION 10.4 Indemnification.
(a) (i) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the Company Indemnified
Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Trust and except that no such indemnification
shall be made in respect of any claim, issue or matter as to which such
Company Indemnified Person shall have been adjudged to be liable to the
Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such Company
Indemnified Person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court shall
deem proper.
(iii) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a), or in
defense of any claim, issue or matter therein, he shall be indemnified,
to the full extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
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(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1)
by the Administrative Trustees by a majority vote of a Quorum
consisting of such Administrative Trustees who were not parties to such
action, suit or proceeding, (2) if such a Quorum is not obtainable, or,
even if obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion,
or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be
paid by the Sponsor in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
the Sponsor as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Sponsor if a determination
is reasonably and promptly made (1) by the Administrative Trustees by a
majority vote of a Quorum of disinterested Administrative Trustees, (2)
if such a Quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Administrative Trustees so directs, by independent
legal counsel in a written opinion or (3) by the Common Security Holder
of the Trust, that, based upon the facts known to the Administrative
Trustees, counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such Person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to
the Trust or its Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Preferred Security Holders of the Trust or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be
provided by a contract between the Sponsor and each Company Indemnified
Person who serves in such capacity at any time while this Section
10.4(a) is in effect. Any repeal or modification of this Section
10.4(a) shall not affect any rights or obligations then existing.
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(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any Person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a Person
who has ceased to be a Company Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
(b) The Sponsor agrees to indemnify the (i) Property Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based on the income
of such Fiduciary Indemnified Person) incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. With respect
to the Property Trustee, this provision shall not be deemed to modify Section
3.9(b) or the Trust Indenture Act. The obligation to indemnify as set forth in
this Section 10.4(b) shall survive the resignation or removal of the Property
Trustee or the Delaware Trustee and the satisfaction and discharge of this
Agreement.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be
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deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States Federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) The Administrative Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities, any annual United
States Federal income tax information statement, required by the Code,
containing such information with regard to the Securities held by each Holder as
is required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Administrative
Trustees shall endeavor to deliver all such information statements within 30
days after the end of each Fiscal Year of the Trust.
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(d) The Administrative Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an annual United
States Federal income tax return, on a Form 1041 or such other form required by
United States Federal income tax law, and any other annual income tax returns
required to be filed by the Administrative Trustees on behalf of the Trust with
any state or local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Administrative Trustees shall comply with
all withholding requirements under United States Federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such forms
or certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Administrative Trustees to assist them in determining the
extent of, and in fulfilling, the Trust's withholding obligations. The
Administrative Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and pay over
any amounts to any authority with respect to Distributions or allocations to any
Holder, the amount withheld shall be deemed to be a Distribution in the amount
of the withholding to the Holder. In the event of any claim of excess
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by the amount
of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Agreement or by any
applicable terms of the Securities, this Agreement may only be amended by a
written instrument approved and executed by:
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(i) the Sponsor and the Administrative Trustees (or, if there
are more than two Administrative Trustees, a majority of the
Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Agreement (including the terms
of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Agreement (including the terms
of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is permitted by,
and conforms to, the terms of this Agreement (including the
terms of the Securities) and that all conditions precedent to
the execution and delivery of such amendment have been
satisfied; and
(iii) to the extent the result of such amendment would:
(A) cause the Trust to fail to be classified for
purposes of United States Federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers
of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act.
(c) At such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of the Securities may be effected only
with such additional requirements as may be set forth in the
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terms of such Securities; provided, however, that, without the consent of each
Holder of the Securities, this Agreement may not be amended to (i) change the
Distribution rate (or manner of calculation of the Distribution rate), amount,
timing or currency or otherwise adversely affect the method of any required
payment, (ii) change the purposes of the Trust, (iii) authorize the issuance of
any additional beneficial interests in the Trust, (iv) change the [conversion,
exchange or] redemption provisions, (v) change the conditions precedent for the
Sponsor to elect to dissolve the Trust and distribute the Debentures to the
Holders of the Securities, (vi) change the Liquidation Distribution or other
provisions relating to the distribution of amounts payable upon the dissolution
and liquidation of the Trust, (vii) affect the limited liability of any Holder
of the Securities or (viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on or after the due
date therefor (or in the case of redemption, on the Redemption Date) [or for the
conversion or the exchange of Securities in accordance with their terms].
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under
Article V to increase or decrease the number of, and to appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 12.1(c), this Agreement may be
amended by the Sponsor and the Trustees without the consent of the Holders of
the Securities to:
(i) cure any ambiguity, correct or supplement any provision in
this Agreement that may be inconsistent with any other provision of
this Agreement or make any other provisions with respect to matters or
questions arising under this Agreement not inconsistent with any other
provisions of this Agreement;
(ii) modify, eliminate or add to any provisions of this
Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Securities are outstanding or to
ensure that the Trust will not be required to register as an Investment
Company under the Investment Company Act;
provided, however, that, in each case, such action shall not adversely affect in
any material respect the interests of the Holders of the Securities, and any
such amendments of this Agreement shall become effective when notice thereof is
given to the Holders of the Securities.
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SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Administrative Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Agreement, the
terms of the Securities or the rules of any stock exchange or quotation system
or market on which the Preferred Securities are listed or admitted for trading.
The Administrative Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in Liquidation Amount of the
Securities of such class. Such direction shall be given by delivering to the
Administrative Trustees one or more notices in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the general
or specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the security certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Agreement or the rules of any
stock exchange or quotation system or market on which the Preferred Securities
are listed or admitted for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in Liquidation
Amount that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in writing.
(c) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least seven
days and not more than 60 days before the date of such meeting. The
Administrative Trustees may specify that any written ballot submitted
to the Security Holders for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the
Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of eleven months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities
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executing it. Except as otherwise provided herein, all matters relating
to the giving, voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Administrative Trustees or by such other Person
that the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Agreement, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange or quotation system or market on which the
Preferred Securities are then listed or trading, otherwise provides,
the Administrative Trustees, in their sole discretion, shall establish
all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of Securities, waiver of
any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy or
any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Agreement, and
each Successor Property Trustee represents and warrants, as applicable, to the
Trust and the Sponsor at the time of the Successor Property Trustee's acceptance
of its appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or a State of the
United States, as the case may be, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
this Agreement;
(b) the execution, delivery and performance by the Property
Trustee of the Agreement have been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Agreement has been duly executed
and delivered by the Property Trustee under New York law and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights
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generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement
by the Property Trustee do not conflict with or constitute a breach of the
charter or by-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration
with or notice to, any federal or New York State banking authority is required
for the execution, delivery or performance by the Property Trustee of this
Agreement.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Agreement, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or the State of
Delaware, as the case may be, with corporate power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Agreement;
(b) the execution, delivery and performance by the Delaware
Trustee of this Agreement have been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Agreement has been duly
executed and delivered by the Delaware Trustee under Delaware law and
constitutes a legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement
by the Delaware Trustee do not conflict with or constitute a breach of the
charter or by-laws of the Delaware Trustee;
(d) no consent, approval or authorization of, or registration
with or notice to, any Federal or Delaware banking authority governing the trust
powers of the Delaware Trustee is required for the execution, delivery or
performance by the Delaware Trustee of this Agreement; and
(e) the Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the
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State of Delaware, and is a Person that satisfies for the Trust Section 3807(a)
of the Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrative
Trustees at the Trust's mailing address set forth below (or such other address
as the Trust may give notice of to the Holders of the Securities):
Hercules Trust II
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Department
Telecopier: (302) 984-4903
Telephone: (302) 428-3372
(c) if given to the Property Trustee, at the Property
Trustee's mailing address set forth below (or such other address as the Property
Trustee may give notice of to the Holders of the Securities):
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
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Telecopier: (215) 988-8372
Telephone: (215) 988-1329
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Vice-President and Treasurer, and
Corporate Secretary
Telecopier: (302) 594-5210
Telephone: (302) 594-6605
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Agreement and the rights of the parties hereunder shall
be governed by and construed in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws, except that the rights, limitations of
rights, obligations, duties and immunities of the Property Trustee shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States Federal income tax purposes as a grantor trust. The
provisions of this Agreement shall be interpreted to further this intention of
the parties.
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SECTION 14.4 Headings.
The Table of Contents, Cross-Reference Table and Headings
contained in this Agreement are inserted for convenience of reference only and
do not affect the interpretation of this Agreement or any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Agreement any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Agreement by the Sponsor and
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Agreement, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned have caused this Amended
and Restated Trust Agreement to be executed as of the day and year first above
written.
Israel J. Floyd, not in his individual capacity but
solely as Administrative Trustee of the Trust
---------------------------
Jan M. King, not in her individual capacity but
solely as Administrative Trustee of the Trust
---------------------------
Stuart C. Shears, not in his individual capacity but
solely as Administrative Trustee of the Trust
---------------------------
Chase Manhattan Bank Delaware, not in its
individual capacity but solely as Delaware Trustee
of the Trust
By:
------------------------
Name:
Title:
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The Chase Manhattan Bank, not in its individual
capacity but solely as Property Trustee of the Trust
By:
------------------------
Name:
Title:
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HERCULES INCORPORATED,
as Sponsor
By:
------------------------
Name:
Title:
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<PAGE> 72
ANNEX I
TERMS* OF
[_____%] [FLOATING RATE] PREFERRED SECURITIES
[_____%] [FLOATING RATE] COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Trust Agreement of
the Trust, dated as of _________, _____ (as amended from time to time, the
"Agreement"), the designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities and the Common Securities
(collectively, the "Securities") are set forth below (each capitalized term used
but not defined herein has the meaning set forth in the Agreement or, if not
defined in such Agreement, as defined in the Indenture):
1. Designation and Number.
(a) Preferred Securities. [Up to]_______ Preferred Securities of the
Trust, with an aggregate liquidation amount with respect to the assets of the
Trust of [up to] ________ dollars ($_________), and with a Liquidation Amount
with respect to the assets of the Trust of $ ___ per security, are hereby
designated for the purposes of identification only as "[___%] [Floating Rate]
Preferred Securities" (the "Preferred Securities"). The certificates evidencing
the Preferred Securities shall be substantially in the form of Exhibit A-1 to
the Agreement, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange or quotation system on which the Preferred Securities are
listed or quoted.
(b) Common Securities. [Up to]________ Common Securities of the Trust
with an aggregate Liquidation Amount with respect to the assets of the Trust of
[up to] ____________ dollars ($_________), and with a Liquidation Amount with
respect to the assets of the Trust of $____ per security, are hereby designated
for the purposes of identification only as "[____%] [Floating Rate] Common
Securities" (the "Common Securities"). The certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-2 to the Agreement,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions on each Security will be payable at a rate per annum
of [___%] [equal to LIBOR plus ___%] (the "Distribution Rate") of the
liquidation amount of $_____ per Security (the "Liquidation Amount"), such rate
being the rate of interest payable on the Debentures to be held by the Property
Trustee. [LIBOR and the amount payable in respect of
- --------
* SUBJECT TO ADDITIONAL OR ALTERNATIVE PROVISIONS IF ANY OF THE SECURITIES ARE
SUBJECT TO CONVERSION OR EXCHANGE.
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a Distribution for a Distribution Period (as defined below) will be calculated
by the Calculation Agent in the same manner as LIBOR and the interest payable in
respect of each Interest Period for the Debentures, as set forth in the
Indenture.] Distributions in arrears for more than one ___________ period will
bear additional distributions thereon compounded ________ at the applicable
periodic Distribution Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes any such additional distributions
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds legally available therefor.
(b) Distributions on the Securities will be cumulative, will accumulate
from the most recent date to which Distributions have been paid or, if no
Distributions have been paid, from ____________ ,____, to but excluding the
related Distribution Date or Redemption Date (each defined below) and will be
payable ________ in arrears on _____________ of each year, commencing ________,
_____ (each, a "Distribution Date"), except as otherwise described below. The
amount of Distributions payable for any Distribution Period will be computed on
the basis of [a 360-day year consisting of twelve 30-day months] [the actual
number of days elapsed in such period and a year of 360 days]. "Distribution
Period" means the period from and including the immediately preceding
Distribution Date (or _______, ____ , in the case of the first Distribution
Period) to but excluding the applicable Distribution Date or Redemption Date. If
a Distribution Date is not a Business Day, then [such Distribution Date and the
first day of the Distribution Period commencing on such Distribution Date will
be the next succeeding Business Day, except if such Business Day is in the next
succeeding calendar month, such Distribution Date and the first day of such
Distribution Period will be the immediately preceding Business Day] [payments of
any Distributions payable on such date will be made on the next succeeding
Business Day, and no interest or other payment in respect of any such delay will
accumulate for the period to but excluding such Business Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest on the Debentures by extending the interest payment period
at any time and from time to time for a period not exceeding ______ consecutive
__________ periods (each __________ period as to which ___________ interest
payments have been deferred is referred to herein as an "Extension Period"),
provided that an Extension Period must end on an Interest Payment Date for the
Debentures and may not extend beyond the Stated Maturity Date or date of earlier
redemption for the Debentures. As a consequence of such deferral, Distributions
on the Securities will also be deferred during an Extension Period. Despite such
deferral, _________ Distributions will continue to accumulate with additional
interest thereon (to the extent permitted by applicable law but not at a rate
greater than the rate at which interest is then accruing on the Debentures) at
the Distribution Rate then in effect, compounded __________ during any Extension
Period. Prior to the termination of an Extension Period, the Debenture Issuer
may further defer payments of interest by further extending such Extension
Period; provided that an Extension Period, together with all such previous and
further extensions, may not exceed _____ consecutive ______
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periods, must end on an Interest Payment Date for the Debentures and may not
extend beyond the Stated Maturity Date or date of earlier redemption for the
Debentures. At the end of an Extension Period, all accumulated and unpaid
Distributions (but only to the extent payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds legally available therefor) will be payable to the Holders as they
appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period (or any extension thereof) and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements.
(c) Distributions on a Distribution Date will be payable to
the Holders thereof as they appear on the books and records of the Trust on
the_______ day of the month [immediately preceding] [in which] such Distribution
Date [occurs]. The relevant record dates for the Common Securities shall be the
same as the record dates for the Preferred Securities. Distributions payable on
any Securities that are not punctually paid or duly provided for on any
Distribution Date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, will cease to be payable to the Holder on the
relevant record date, and such defaulted Distributions will instead be payable
to the Person in whose name such Securities are registered on the Special Record
Date or other specified date determined in accordance with the Indenture.
[(d) ______________ shall act as Calculation Agent to
determine LIBOR and calculate the Distribution Rate of, and the amount of
Distributions payable on, the Securities for each Distribution Period pursuant
to the terms set forth herein and in the Securities.]
[(d)] [(e)] In the event that there is any money or other
property held by or for the Trust that is not accounted for hereunder, such
property shall be distributed on a Pro Rata (as defined herein) basis among the
Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust, the Trust shall be
liquidated by the Administrative Trustees as expeditiously as the Administrative
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
Holders of the Securities a Like Amount (as defined below) of the Debentures,
unless such distribution is determined by the Property Trustee not to be
practicable, in which event such Holders will be entitled to receive out of the
assets of the Trust legally available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the aggregate of the Liquidation Amount of $_______ per
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount is referred to herein as the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the Securities,
Securities having a Liquidation Amount equal to the principal amount of
Debentures to be paid in accordance with their terms and (ii) with respect to a
distribution of Debentures upon the dissolution of the Trust,
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Debentures having a principal amount equal to the Liquidation Amount of the
Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets legally available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in
whole or in part, at stated maturity or date of earlier redemption (either at
the option of the Debenture Issuer or pursuant to a Tax Event, as described
below), the proceeds from such repayment shall be simultaneously applied by the
Property Trustee to redeem a Like Amount of the Securities at a redemption price
equal to (i) in the case of the repayment of the Debentures at stated maturity,
the Maturity Redemption Price (as defined below), (ii) in the case of the
optional redemption of the Debentures upon the occurrence [prior to _________]
and continuation of a Tax Event, the Tax Event Redemption Price (as defined
below) and (iii) in the case of the optional redemption of the Debentures other
than as a result of the occurrence and continuance of a Tax Event, the Optional
Redemption Price (as defined below). The Maturity Redemption Price, the Tax
Event Redemption Price and the Optional Redemption Price are referred to
collectively as the "Redemption Price" and the date fixed for redemption of the
Securities is referred to herein as the "Redemption Date". Holders will be given
not less than 30 nor more than 60 days' prior written notice of such redemption.
Any redemption of Securities shall be made, and the applicable Redemption Price
shall be payable, on the Redemption Date, and only to the extent that the Trust
has funds legally available for the payment thereof.
(b) (i) The "Maturity Redemption Price", shall
mean a price equal to 100% of the Liquidation Amount of the Securities to be
redeemed plus accumulated and unpaid Distributions thereon, if any, to the date
of redemption.
(ii) In the case of an optional redemption other than as a result of
the occurrence and continuance of a Tax Event, if fewer than all the outstanding
Securities are to be so redeemed, the Common Securities and the Preferred
Securities will be redeemed on a Pro Rata basis and the Preferred Securities to
be redeemed will be determined as described in Section 4(f)(ii) below. [Upon the
entry of an order for the dissolution of the Trust by a court of competent
jurisdiction, the Debentures thereafter will be subject to optional repayment,
in whole, but not in part, on or after ____________, _____.]
The Debenture Issuer shall have the right (subject to the conditions in
the Indenture) to redeem the Debentures in whole or in part at any time on or
after _________, ______, and, simultaneous with such redemption, to cause a Like
Amount of the Securities to be redeemed by the Trust at the Optional Redemption
Price on a Pro Rata basis. "Optional Redemption Price" shall mean a price equal
to [_____%] [the percentage of the Liquidation Amount of Securities to
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be redeemed plus accumulated and unpaid Distributions thereon, if any, to the
date of redemption if redeemed during the 12-month period beginning ________ of
the years indicated below:
Year Percentage]
------ ----------
(c) If at any time a Tax Event occurs [prior to ____________]
and is continuing, the Debenture Issuer shall have the right (subject to the
conditions set forth in the Indenture) to redeem the Debentures in whole, but
not in part, within the 90 days following the occurrence of such Tax Event (the
"90 Day Period"), and, simultaneous with such redemption, to cause a Like Amount
of the Securities to be redeemed by the Trust at the Tax Event Redemption Price
on a Pro Rata basis.
"Tax Event" shall occur upon receipt by the Administrative Trustees and
the Debenture Issuer of a reasoned Opinion of Counsel from counsel experienced
in such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the date of the Agreement, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income received or
accrued on the Debentures, (ii) the interest payable by the Debenture Issuer on
the Debentures is not, or within 90 days of the date of such opinion will not
be, deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Tax Event Redemption Price" shall mean a price equal to [the greater
of (i)] 100% of the Liquidation Amount of Securities to be redeemed [or (ii) the
sum, as determined by a Quotation Agent (as defined in the Indenture), of the
present values of the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a _________ basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate
(as defined in the Indenture), plus, in each case, accumulated and unpaid
Distributions thereon, if any, to the date of such redemption].
(d) On and from the date fixed by the Administrative Trustees
for any distribution of Debentures and liquidation of the Trust: (i) the
Securities will no longer be deemed to be outstanding, (ii) the Clearing Agency
or its nominee (or any successor Clearing Agency or its nominee), as the Holder
of the Preferred Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such distribution
and (iii) any
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certificates representing Securities not held by the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee) will be deemed to
represent beneficial interests in Debentures until such certificates are
presented to the Debenture Issuer or its agent for transfer or reissue.
(e) The Trust may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions have been paid on all
Securities for all Distribution periods terminating on or before the Redemption
Date.
(f) The procedure with respect to redemptions or distributions
of Debentures shall be as follows:
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by an Administrative
Trustee on behalf of the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before
the date fixed for redemption or exchange thereof which, in the case of
a redemption, will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption or exchange
and the dates on which notices are given pursuant to this Section
4(f)(i), a Redemption/ Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect
in the Redemption/ Distribution Notice or in the mailing of either
thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(ii)In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed on a Pro Rata basis from each Holder of Preferred Securities,
it being understood that, in respect of Preferred Securities registered
in the name of and held of record by the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to the
Clearing Agency and disbursed by such Clearing Agency in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust
gives a Redemption/Distribution Notice (which notice will be
irrevocable), then (A) with respect to Global Preferred Securities
representing Preferred Securities issued in book-entry form, by 12:00
noon, New York City time, on the Redemption Date, provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of
cash in connection with the related redemption or maturity of the
Debentures by 10:00 a.m., New York City time, on the stated maturity
date or the date of earlier redemption, as the case requires, the
Property Trustee will deposit irrevocably with the Clearing Agency or
its nominee (or
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successor Clearing Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to such Preferred Securities
and will give the Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the relevant Participants, and
(B) with respect to Definitive Preferred Securities and Common
Securities, provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of such Holder appearing on the books and
records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, then immediately prior to the close of business
on the date of such deposit, or on the Redemption Date, as applicable,
Distributions will cease to accumulate on the Securities so called for
redemption and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on
such Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment of accumulated and unpaid Distributions on
the Redemption Date will be subject to the rights of Holders of
Securities on the close of business on a record date in respect of a
Distribution Date occurring on or prior to such Redemption Date.
(v) Neither the Administrative Trustees nor the Trust
shall be required to register or cause to be registered the transfer of
(i) any Securities beginning on the opening of business 15 days before
the day of mailing of a notice of redemption or any notice of selection
of Securities for redemption or (ii) any Securities selected for
redemption except the unredeemed portion of any Security being
redeemed. If a Redemption Date is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the next
succeeding Business Day, and no interest or other payment in respect of
any such delay will accumulate for the period to but excluding such
Business Day. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities will
continue to accumulate from the original redemption date to the actual
date of payment, in which case the actual payment date will be
considered the Redemption Date for purposes of calculating the
Redemption Price.
(vi) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust to (A) in respect of the
Preferred Securities, the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee) if the Global Preferred
Securities have been issued or, if Definitive Preferred Securities have
been issued, to the Holders thereof, and (B) in respect of the Common
Securities, to the Sponsor.
(vii) Subject to the foregoing and applicable law
(including, without limitation, United States Federal securities laws
and banking laws), the Sponsor or any of
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its subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law or the Agreement, the Holders of the Preferred
Securities will have no voting rights.
(b) So long as any Debentures are held by the
Property Trustee, the Trustees shall not (i) direct the time, method and place
of conducting any proceeding with respect to any remedy available to the
Debenture Trustee, or exercise any trust or power conferred upon the Debenture
Trustee, with respect to the Debentures, (ii) waive any past default that is
waivable under the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures,
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures where such consent shall be required, without, in each case,
obtaining (1) the prior approval of the Holders of a Majority in Liquidation
Amount of all outstanding Preferred Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior approval of each Holder of the Preferred Securities
and (2) an Opinion of Counsel delivered to the Trust from tax counsel
experienced in such matters to the effect that the Trust will not be classified
as an association taxable as corporation for United States Federal income tax
purposes on account of such action.
Notwithstanding anything to the contrary contained herein, if an Event
of Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or, in the case of
redemption, on the Redemption Date), then a Holder of Preferred Securities may
directly institute a proceeding against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such a Direct Action, (i)
the rights of the Common Securities Holder will be subordinated to the rights of
Holders of Preferred Securities with respect to payments made or required to be
made by the Debenture Issuer in such Direct Action and (ii) the Debenture Issuer
shall remain obligated to pay the principal of, premium, if any, or interest on
such Debentures, and the Debenture Issuer shall be subrogated to the rights of
such Holder of Preferred Securities to the extent of any payment made by the
Debenture Issuer to such Holder in such Direct Action.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Property Trustees will cause a notice of any meeting at which
Holders of Preferred Securities are entitled to vote to be mailed to each Holder
of record of Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such
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<PAGE> 80
meeting on which such Holders are entitled to vote and (iii) instructions for
the delivery of proxies.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities, or to
distribute the Debentures, in accordance with the Agreement and these terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b) and 7
as otherwise required by law or the Agreement, the Holders of the Common
Securities will have no voting rights.
(b) So long as any Debentures are held by the
Property Trustee, the Trustees shall not (i) direct the time, method and place
of conducting any proceeding with respect to any remedy available to the
Debenture Trustee, or exercise any trust or power conferred upon the Debenture
Trustee, with respect to the Debentures, (ii) waive any past default that is
waivable under the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures where such consent shall be required, without, in each case,
obtaining (1) the prior approval of the Holders of a Majority in Liquidation
Amount of all outstanding Common Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior approval of the Common Securities Holder and (2) an
Opinion of Counsel delivered to the Trust from tax counsel experienced in such
matters to the effect that the Trust will not be classified as an association
taxable as a corporation for United States Federal income tax purposes on
account of such action.
Notwithstanding anything to the contrary contained herein, if an Event
of Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or, in the case of
redemption, on the Redemption Date), then a Holder of Common Securities may
institute a Direct Action against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures on or after the respective due date specified in the
Debentures. In connection with such a Direct Action, (i) the rights of the
Common Securities Holder will be subordinated to the rights of Holders of
Preferred Securities with respect to payments made or required to be made by the
Debenture Issuer in such Direct Action and (ii) the Debenture Issuer shall
remain obligated to pay the principal of, premium, if any, or interest on such
Debentures, and the Debenture Issuer shall be subrogated to the rights of such
Holder of
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<PAGE> 81
Preferred Securities to the extent of any payment made by the Debenture Issuer
to such Holder in such Direct Action.
Any approval or direction of Holder(s) of Common Securities may be
given at a separate meeting of Holder(s) of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Administrative Trustees will cause a notice of any meeting at which
Holder(s) of Common Securities are entitled to vote, to be mailed to each Holder
of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holder(s) are entitled to
vote and (iii) instructions for the delivery of proxies.
No vote or consent of the Holder(s) of the Common Securities will be
required for the Trust to redeem and cancel Common Securities, or to distribute
the Debentures, in accordance with the Agreement and these terms of the
Securities.
7. Amendments to Agreement.
In addition to the requirements set out in Section 12.1 of the
Agreement, the Agreement may be amended from time to time by the Sponsor and the
Trustees with (i) the consent of Holders of a Majority in Liquidation Amount of
all outstanding Securities, and (ii) receipt by the Trustees of an opinion of
counsel experienced in such matters to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States Federal
income tax purposes or the Trust's exemption from status as an Investment
Company under the Investment Company Act; provided, however, that, without the
consent of each Holder of the Securities, the Agreement may not be amended to
(i) change the Distribution Rate (or manner of calculation of the Distribution
Rate), amount, timing or currency or otherwise adversely affect the method of
any required payment, (ii) change the purposes of the Trust, (iii) authorize the
issuance of any additional beneficial interests in the Trust, (iv) change the
redemption provisions, (v) change the conditions precedent for the Sponsor to
elect to dissolve the Trust and distribute the Debentures to the Holders of the
Securities, (vi) change the Liquidation Distribution or other provisions
relating to the distribution of amounts payable upon the dissolution and
liquidation of the Trust, (vii) affect the limited liability of any Holder of
the Securities or (viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on or after the due
date therefor (or, in the case of redemption, on the Redemption Date).
8. Pro Rata.
A reference herein to any payment, distribution or treatment as being
"Pro Rata" shall mean pro rata to each Holder of Securities according to the
aggregate Liquidation Amount of the Securities held by such Holder in relation
to the aggregate Liquidation Amount of all Securities outstanding unless, in
relation to a payment, an Event of Default under the Agreement has occurred and
is continuing, in which case any funds legally available to make such payment
shall
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<PAGE> 82
be paid first to each Holder of the Preferred Securities pro rata according to
the aggregate Liquidation Amount of Preferred Securities held by such Holder
relative to the aggregate Liquidation Amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate Liquidation Amount of Common Securities held by such Holder
relative to the aggregate Liquidation Amount of all Common Securities
outstanding.
9. Ranking.
The Preferred Securities rank pari passu with the Common Securities and
payment thereon shall be made Pro Rata with the Common Securities, except that,
if an Event of Default under the Agreement occurs and is continuing, no payments
in respect of Distributions on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Securities shall be made until the Holders
of the Preferred Securities shall be paid in full the Distributions, Redemption
Price, Liquidation Distribution and other payments to which they are entitled at
such time.
10. Acceptance of Securities Guarantees and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee, the Common Securities Guarantee and the Indenture, including the
subordination provisions therein.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar
rights to subscribe for any additional securities of the Trust.
12. Miscellaneous.
These terms constitute a part of the Agreement.
The Sponsor will provide a copy of the Agreement, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate)
and the Indenture (including any supplemental indenture) to a Holder without
charge on written request to the Sponsor at its principal place of business.
I-11
<PAGE> 83
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY, INSERT:
THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE MEANING OF THE
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING
AGENCY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE AGREEMENT AND NO TRANSFER OF
THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A
WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE
OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING
AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
A1-1
<PAGE> 84
Certificate Number Number of Preferred
Securities
__________________ ____________________
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
HERCULES TRUST II
________________________________________________________________________________
[____%] [Floating Rate] Preferred Securities
(liquidation amount $ ____ per Preferred Security)
HERCULES TRUST II, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of __________ securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [____%] [Floating Rate] Preferred Securities (liquidation amount
$ ____ per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Trust Agreement of the Trust dated as of _____________, ____, as the
same may be amended from time to time (the "Agreement"), including the
designation of the terms of the Preferred Securities as set forth in Annex I to
the Agreement. Capitalized terms used but not defined herein shall have the
meaning given them in the Agreement. The Sponsor will provide a copy of the
Agreement, the Preferred Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the Agreement
and is entitled to the benefits thereunder and to the benefits of the Preferred
Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
A1-2
<PAGE> 85
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of __________________,_____.
HERCULES TRUST II
By:_______________________________________
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:______________________________________
Authorized Signatory
A1-3
<PAGE> 86
[FORM OF REVERSE OF SECURITY]
Distributions on each Preferred Security will be payable at a rate per
annum [of ____ %] [equal to LIBOR plus ____%] (the "Distribution Rate") of the
Liquidation Amount of $ ____ per Preferred Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. [LIBOR
and the amount payable in respect of a Distribution for a Distribution Period
will be calculated by the Calculation Agent in the same manner as LIBOR and the
interest payable in respect of each Interest Period for the Debentures, as set
forth in the Indenture.] Distributions in arrears for more than one ______
period will bear additional distributions thereon compounded ______ at the
applicable periodic Distribution Rate (to the extent permitted by applicable
law). The term "Distributions", as used herein, includes any such additional
distributions unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor.
Distributions on the Preferred Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from _____________, ____, to but excluding
the related Distribution Date (as defined herein) or any date fixed for
redemption (a "Redemption Date") and will be payable ______ in arrears on
_________, [___________, _________] and ________ of each year, commencing
______________, _____ (each, a "Distribution Date"), except as otherwise
described below and in the Agreement. The amount of Distributions payable for
any Distribution Period will be computed on the basis of [a 360-day year
consisting of twelve 30-day months] [the actual number of days elapsed in such
period and a year of 360 days]. "Distribution Period" means the period from and
including the immediately preceding Distribution Date (or _______, _____, in the
case of the first Distribution Period) to but excluding the applicable
Distribution Date or Redemption Date. If a Distribution Date is not a Business
Day, then (such Distribution Date and the first day of the Distribution Period
commencing on such Distribution Date will be the next succeeding Business Day,
except if such Business Day is in the next succeeding calendar month, such
Distribution Date and the first day of such Distribution Period will be the
immediately preceding Business Day] [payments of any Distribution payable on
such date will be made on the next succeeding Business Day, and no interest or
other payment in respect of such delay shall accumulate for the period to but
excluding such Business Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding ______
consecutive _______ periods (each, an "Extension Period"), provided that an
Extension Period must end on an interest payment date for the Debentures and may
not extend beyond the stated maturity date or redemption date for the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, ______ Distributions
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<PAGE> 87
will continue to accumulate with additional interest thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Distribution Rate then in
effect compounded ______ during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further defer
payments of interest by further extending such Extension Period; provided that
such Extension Period, together with all such previous and further extensions,
may not exceed ______ consecutive ______ periods, must end on an interest
payment date for the Debentures and may not extend beyond the Maturity Date or
Redemption Date of the Debentures. At the end of the Extension Period, all
accumulated and unpaid Distributions (but only to the extent payments are made
in respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor) will be payable to the Holders as
they appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period (or any extension period thereof) and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
foregoing requirements.
The Preferred Securities shall be redeemable [and convertible] [and
exchangeable] as provided in the Agreement.
A1-5
<PAGE> 88
ASSIGNMENT
_____________________
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
______________________________________________________________ agent to transfer
this Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee**: ___________________________________
__________________
*** Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
A1-6
<PAGE> 89
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE SUBJECT
TO THE TERMS OF THE AGREEMENT (AS DEFINED HEREIN)
Certificate Number Number of Common Securities
__________________ _______________________
Certificate Evidencing Common Securities
of
HERCULES TRUST II
[____ %] [Floating Rate] Common Securities
(liquidation amount $ ____ per Common Security)
HERCULES TRUST II, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
Hercules Incorporated (the "Holder") is the registered owner of
__________ securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the [____%] [Floating
Rate] Common Securities (liquidation amount $ ____ per Common Security)
(the "Common Securities"). The Common Securities are not transferable.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby
are issued and shall in all respects be subject to the provisions of
the Amended and Restated Trust Agreement of the Trust dated as of
______________, ______, as the same may be amended from time to time
(the "Agreement"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Agreement. Capitalized terms
used but not defined herein shall have the meaning given them in the
Agreement. The Sponsor will provide a copy of the Agreement, the Common
Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Agreement and is entitled to the benefits thereunder and to the
benefits of the Common Securities Guarantee to the extent provided
therein.
By acceptance, the Holder agrees to treat, for United States
Federal income tax purposes, the Debentures as indebtedness and the
Common Securities as evidence of indirect beneficial ownership in the
Debentures.
A2-1
<PAGE> 90
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ____________________, _____.
HERCULES TRUST II
By: _________________________________
Name:
Title: Administrative Trustee
A2-2
<PAGE> 91
[FORM OF REVERSE OF SECURITY]
Distributions on each Common Security will be payable at a rate per
annum [of ____%] [equal to LIBOR plus ____ %] (the "Distribution Rate") of the
Liquidation Amount of $ ____ per Common Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. [LIBOR
and the amount payable in respect of a Distribution for a Distribution Period
will be calculated by the Calculation Agent in the same manner as LIBOR and the
interest payable in respect of each Interest Period for the Debentures, as set
forth in the Indenture.] Distributions in arrears for more than one ____ period
will bear additional distributions thereon compounded ____ at the applicable
periodic Distribution Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes any such additional distributions
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds legally available therefor.
Distributions on the Common Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from __________, ____ , to but excluding the
related Distribution Date (as defined herein) or any date fixed for redemption
(a "Redemption Date"), and will be payable ______ in arrears on _________[,
____________, ___________] and ____________ of each year, commencing __________
, _____ (each, a "Distribution Date"), except as otherwise described below and
in the Agreement. The amount of Distributions payable for any Distribution
Period will be computed on the basis of [a 360-day year consisting of twelve
30-day months] [the actual number of days elapsed in such period and a year of
360 days]. "Distribution Period" means the period from and including the
immediately preceding Distribution Date (or ________, _____, in the case of the
first Distribution Period) to but excluding the applicable Distribution Date or
Redemption Date. If a Distribution Date is not a Business Day, then [such
Distribution Date and the first day of the Distribution Period commencing on
such Distribution Date will be the next succeeding Business Day, except if such
Business Day is in the next succeeding calendar month, such Distribution Date
and the first day of such Distribution Period will be the immediately preceding
Business Day] [payment s of any Distributions payable on such date will be made
on the next succeeding Business Day, and no interest or other payment in respect
of any such delay shall accumulate for the period to but excluding such Business
Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding ______
consecutive ______ periods (each, an "Extension Period"), provided that an
Extension Period must end on an interest payment date for the Debentures and may
not extend beyond the stated maturity date or redemption date for the
Debentures. As a consequence of
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<PAGE> 92
such deferral, Distributions will also be deferred. Despite such deferral,
______ Distributions will continue to accumulate with additional interest
thereon (to the extent permitted by applicable law but not at a rate greater
than the rate at which interest is then accruing on the Debentures) at the
Distribution Rate then in effect compounded ______ during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension Period, together with all such
previous and further extensions, may not exceed ______ consecutive ______
periods, must end on an interest payment date for the Debentures and may not
extend beyond the Maturity Date or Redemption Date of the Debentures. At the end
of the Extension Period, all accumulated and unpaid Distributions (but only to
the extent payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor) will be payable to the Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the foregoing requirements.
The Common Securities shall be redeemable [and convertible] [and
exchangeable] as provided in the Agreement.
A2-4
<PAGE> 93
EXHIBIT B
[Insert Specimen Debenture]
B-1
<PAGE> 94
EXHIBIT C
[Insert Purchase Agreement]
C-1
<PAGE> 1
AMENDED AND RESTATED TRUST AGREEMENT
HERCULES TRUST III
Dated as of _________, ____
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions. .............................................. 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. ......................... 9
SECTION 2.2 Lists of Holders of Securities. ........................... 9
SECTION 2.3 Reports by the Property Trustee. .......................... 10
SECTION 2.4 Periodic Reports to Property Trustee. ..................... 10
SECTION 2.5 Evidence of Compliance with Condition Precedent ........... 10.
SECTION 2.6 Events of Default; Waiver. ................................ 10
SECTION 2.7 Event of Default; Notice. ................................. 12
ARTICLE III
ORGANIZATION
SECTION 3.1 Name. ..................................................... 13
SECTION 3.2 Office. ................................................... 13
SECTION 3.3 Purpose. .................................................. 13
SECTION 3.4 Authority. ................................................ 13
SECTION 3.5 Title to Property of the Trust. ........................... 13
SECTION 3.6 Powers and Duties of the Administrative Trustees. ......... 14
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees. ..... 16
SECTION 3.8 Powers and Duties of the Property Trustee ................. 18
SECTION 3.9 Certain Duties and Responsibilities
of the Property Trustee ................................... 20
SECTION 3.10 Certain Rights of Property Trustee. ....................... 22
SECTION 3.11 Delaware Trustee. ......................................... 24
SECTION 3.12 Execution of Documents. ................................... 25
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities. ............................................... 25
SECTION 3.14 Duration of Trust. ........................................ 25
SECTION 3.15 Mergers. .................................................. 25
i
<PAGE> 3
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities ................... 27
SECTION 4.2 Responsibilities of the Sponsor. .......................... 28
SECTION 4.3 Right to Proceed. ......................................... 28
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee ............. 29
SECTION 5.2 Delaware Trustee. ......................................... 29
SECTION 5.3 Property Trustee; Eligibility. ............................ 30
SECTION 5.4 Certain Qualifications of Administrative Trustees
and Delaware Trustee Generally. ........................... 31
SECTION 5.5 Administrative Trustees. .................................. 31
SECTION 5.6 Delaware Trustee. ......................................... 31
SECTION 5.7 Appointment, Removal and Resignation of Trustees .......... 32
SECTION 5.8 Vacancies among Trustees. ................................. 33
SECTION 5.9 Effect of Vacancies. ...................................... 34
SECTION 5.10 Meetings. ................................................. 34
SECTION 5.11 Delegation of Power. ...................................... 34
SECTION 5.12 Merger, Conversion, Consolidation or
Succession to Business .................................... 35
SECTION 5.13 Compensation. ............................................. 35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions. ............................................ 35
ARTICLE VII ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities ................... 36
SECTION 7.2 Execution and Authentication. ............................. 36
SECTION 7.3 Form and Dating. .......................................... 37
SECTION 7.4 Registrar and Paying Agent. ............................... 38
SECTION 7.5 Paying Agent to Hold Money in Trust. ...................... 39
SECTION 7.6 Replacement Securities. ................................... 39
SECTION 7.7 Outstanding Preferred Securities. ......................... 40
SECTION 7.8 Preferred Securities in Treasury. ......................... 40
SECTION 7.9 Temporary Securities. ..................................... 40
ii
<PAGE> 4
SECTION 7.10 Cancellation. ............................................. 41
SECTION 7.11 CUSIP Numbers. ............................................ 41
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust. .................................... 42
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities. .................................. 43
SECTION 9.2 Transfer Procedures and Restrictions ..................... 43
SECTION 9.3 Deemed Security Holders. ................................. 46
SECTION 9.4 Book Entry Interests. .................................... 47
SECTION 9.5 Notices to Clearing Agency. .............................. 47
SECTION 9.6 Appointment of Successor Clearing Agency ................. 47
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1 Liability. ............................................... 48
SECTION 10.2 Exculpation. ............................................. 48
SECTION 10.3 Fiduciary Duty. .......................................... 49
SECTION 10.4 Indemnification. ......................................... 50
SECTION 10.5 Outside Businesses. ...................................... 52
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year. ............................................. 53
SECTION 11.2 Certain Accounting Matters. .............................. 53
SECTION 11.3 Banking. ................................................. 54
SECTION 11.4 Withholding. ............................................. 54
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments. .............................................. 54
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent. ............................... 57
iii
<PAGE> 5
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee ........ 58
SECTION 13.2 Representations and Warranties of Delaware Trustee ........ 59
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices. ................................................. 60
SECTION 14.2 Governing Law. ........................................... 61
SECTION 14.3 Intention of the Parties. ................................ 61
SECTION 14.4 Headings. ................................................ 62
SECTION 14.5 Successors and Assigns. .................................. 62
SECTION 14.6 Partial Enforceability. .................................. 62
SECTION 14.7 Counterparts. ............................................ 62
iv
<PAGE> 6
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Agreement
310(a)..................................................... 5.3(a)
310(b)..................................................... 5.3(c)
310(c)..................................................... Inapplicable
311(a) and (b)............................................. 5.3(c)
311(c)..................................................... Inapplicable
312(a)..................................................... 2.2(a)
312(b)..................................................... 2.2(b)
313........................................................ 2.3
314(a)..................................................... 2.4
314(b)..................................................... Inapplicable
314(c)..................................................... 2.5
314(d)..................................................... Inapplicable
314(e)..................................................... 1.1, 2.5
314(f)..................................................... Inapplicable
315(a)..................................................... 3.9(b)
315(b)..................................................... 2.7(a)
315(c)..................................................... 3.9(a)
315(d)..................................................... 3.9(b)
316(a) and (b) ............................................ 2.6 and Annex I
316(c)..................................................... 3.6(f)
317(a)..................................................... 3.8(c)
317(b)..................................................... 3.8(i)
- ---------------
% This Cross-Reference Table does not constitute part of the Agreement and
shall not affect the interpretation of any of its terms or provisions.
<PAGE> 7
AMENDED AND RESTATED
TRUST AGREEMENT
OF
HERCULES TRUST III
--------, ----
AMENDED AND RESTATED TRUST AGREEMENT (the "Agreement") dated and
effective as of ________, ____, by the Trustees (as defined herein), the Sponsor
(as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (as defined herein) to be issued
pursuant to this Agreement;
WHEREAS, the Trustees and the Sponsor established Hercules Trust III
(the "Trust"), a trust created under the Business Trust Act (as defined herein)
pursuant to a Trust Agreement dated as of September 14, 1998 (the "Original
Agreement"), and a Certificate of Trust filed with the Secretary of State of the
State of Delaware on September 14, 1998, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Debenture Issuer (each as hereinafter defined) and engaging in only those
activities necessary, advisable or incidental thereto;
WHEREAS, the parties hereto desire to amend and restate each and
every term and provision of the Original Agreement; and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust continue as a business trust under the Business Trust Act, that the
Original Agreement be amended and restated in its entirety as provided herein
and that this Agreement constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Agreement and, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
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<PAGE> 8
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Agreement but not defined in the
preamble above or elsewhere herein have the respective meanings assigned
to them in this Section 1.1;
(b) a term defined anywhere in this Agreement has the same meaning
throughout;
(c) all references to "the Agreement" or "this Agreement" are to
this Agreement and each Annex and Exhibit hereto, as modified,
supplemented or amended from time to time;
(d) all references in this Agreement to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as defined herein)
has the same meaning when used in this Agreement unless otherwise defined
in this Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Administrative Trustee" has the meaning set forth in Section 5.1.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar [or Conversion Agent].
"Agreement" means this Amended and Restated Trust Agreement, dated
as of __________.
"Authorized Officer" of a Person means any other Person that is
authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a Global
Preferred Security Certificate registered in the name of a Clearing Agency or
its nominee, ownership and transfers
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<PAGE> 9
of which shall be maintained and made through book entries by a Clearing Agency
as described in Section 9.4.
"Business Day" means any day other than a Saturday, Sunday or other
day on which banking institutions in The City of New York or Wilmington,
Delaware are authorized or required by law, regulation or executive order to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a global certificate and which shall
undertake to effect book-entry transfers and pledges of the Preferred
Securities.
"Closing Time" means the Closing Time as defined in the Purchase
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if at any time after the
execution of this Agreement such Commission is not existing and performing the
duties now assigned to it under applicable federal securities laws, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in Section 7.1(a).
"Common Securities Guarantee" means the Common Securities Guarantee
Agreement, dated as of ________, _____ of the Sponsor in respect of the Common
Securities.
"Company Indemnified Person" means (a) any Administrative Trustee;
(b) any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee; or (d) any officer, employee or agent of the Trust or
its Affiliates; provided that the term "Company Indemnified Person" shall not
include any Fiduciary Indemnified Person.
"Conversion Agent" has the meaning specified in Section 7.4.
"Corporate Trust Office" means the office of the Property Trustee
for the conduct of corporate trust business at which matters related to this
Agreement shall, at any particular time, be principally administered, which
office at the date of execution of this Agreement is located at One Liberty
Place, 52nd Floor, 1650 Market Street, Philadelphia, Pennsylvania 19103.
3
<PAGE> 10
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Hercules Incorporated, a Delaware
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
"Debentures" means the _________ Junior Subordinated Deferrable
Interest Debentures due ________, ____ of the Debenture Issuer issued pursuant
to the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Default" means an event, act or condition that with notice of lapse
of time, or both, would constitute an Event of Default.
"Definitive Preferred Securities" has the meaning set forth in
Section 7.3(a).
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" means, with respect to the Securities, an Event
of Default (as defined in the Indenture) that has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Preferred Security" has the meaning set forth in Section
7.3(a).
"Holder" means a Person in whose name a Security or Successor
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
4
<PAGE> 11
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of ________, between the
Debenture Issuer and the Debenture Trustee relating to the Debenture Issuer's
junior subordinated debentures [as supplemented by the Supplemental Indenture]
and as [further] amended or supplemented from time to time.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(h).
"Like Amount" has the meaning set forth in Section 3 of Annex I
hereto.
"Liquidation Amount" has the meaning set forth in Section 2 of Annex
I hereto.
"List of Holders" has the meaning set forth in Section 2.2(a) of
Annex I hereto.
"Majority in Liquidation Amount" means, with respect to the
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the Chief Financial Officer,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary. Any Officers' Certificate delivered by
the Trust shall be signed by at least one Administrative Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
5
<PAGE> 12
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Option Closing Date" means the date of closing of any sale of
Additional Securities (as defined in the Purchase Agreement) or, if such term is
not defined in the Purchase Agreement, the date of closing of any sale of
securities to the underwriters named in such Purchase Agreement solely to cover
overallotments.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of the Sponsor, and who shall be reasonably acceptable to the
Property Trustee, provided, that the General Counsel or Assistant General
Counsel of the Sponsor shall be deemed to be reasonably acceptable to the
Trustee.
"Participants" has the meaning specified in Section 7.3(a).
"Paying Agent" has the meaning specified in Section 7.4.
"Payment Amount" has the meaning specified in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in Section 7.1(a).
"Preferred Securities Guarantee" means the Preferred Securities
Guarantee Agreement dated as of ________, of the Sponsor in respect of the
Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Property Trustee" has the meaning set forth in Section 5.3(a).
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
6
<PAGE> 13
"Purchase Agreement" means the Purchase Agreement for the offering
and sale of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Administrative Trustees or, if
there are only two Administrative Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee,
any officer within the Corporate Trust Office of the Property Trustee with
direct responsibility for the administration of this Agreement, including any
vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer or other officer of the Corporate Trust Office of the
Property Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Property Trustee to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Securities" or "Trust Securities" means the Common Securities and
the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and
the Preferred Securities Guarantee.
"Sponsor" means Hercules Incorporated, a Delaware corporation, or
any successor entity resulting from any merger, consolidation, amalgamation or
other business combination, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.7(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in Section
3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section
3.15(b)(i)(B).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
7
<PAGE> 14
"Tax Event" means the receipt by the Administrative Trustees and the
Debenture Issuer of a reasoned Opinion of Counsel from counsel experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the date of this Agreement, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States Federal income tax with respect to income received or
accrued on the Debentures, (ii) the interest payable by the Debenture Issuer on
the Debentures is not, or within 90 days of the date of such opinion will not
be, deductible by the Debenture Issuer, in whole or in part, for United States
Federal income tax purposes, or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"10% in Liquidation Amount" means, with respect to the Securities,
except as provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holders of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Agreement as a trustee, so long as such Person shall continue as Trustee of the
Trust in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in accordance
with the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
8
<PAGE> 15
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Agreement in order for this
Agreement to be qualified under the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide the Property Trustee, unless the Property Trustee is
Registrar for the Securities, (i) within 14 days after each record date for
payment of Distributions, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders of the Securities
("List of Holders") as of such record date, provided that neither the Sponsor
nor the Administrative Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Administrative Trustees on behalf of the Trust, and (ii) at any
other time, within 30 days of receipt by the Trust of a written request for a
List of Holders as of a date no more than 14 days before such List of Holders is
given to the Property Trustee. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
9
<PAGE> 16
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after September 1 of each year, commencing September
1, ____, the Property Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent provided for in this Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
aggregate principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under
the Agreement may only be waived by the vote of the Holders of at least
the proportion in aggregate Liquidation Amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
10
<PAGE> 17
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Agreement, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Agreement without any further act, vote, or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture (except where the Holders of
the Common Securities are deemed to have waived such Event of Default
under the Agreement as provided below in this Section 2.6(b)), the Event
of Default under the Agreement shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Agreement as provided below in this
Section 2.6(b), the Event of Default under the Agreement may only be
waived by the vote of the Holders of at least the proportion in aggregate
Liquidation Amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and
such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Agreement and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this Section
2.6(b), upon such waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom shall be deemed
to have been cured for every purpose of this Agreement, but
11
<PAGE> 18
no such waiver shall extend to any subsequent or other default or Event of
Default with respect to the Common Securities or impair any right consequent
thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this Agreement.
The foregoing provisions of this Section 2.6(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence
of any default with respect to the Securities, transmit by mail, first class
postage prepaid, to the Holders of the Securities and to the Sponsor, notices of
all such defaults actually known to a Responsible Officer of the Property
Trustee, unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be a Default as defined in the Indenture, not including any periods
of grace provided for therein and irrespective of the giving of any notice
provided therein); provided that, except for (i) a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures or (ii)
any failure by the Company to deliver the required securities or other rights
upon a conversion or exchange election, the Property Trustee shall be protected
in withholding such notice if and so long as a committee of Responsible Officers
of the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have actual
knowledge of any default except:
(i) a default under Sections 6.01(a) and 6.01(b) of the Indenture;
or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the Property
Trustee charged with the administration of the Agreement shall have actual
knowledge.
(c) Within ten Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit notice of such Event of Default to the Holders
of the Preferred Securities, the Administrative Trustees and the Sponsor, unless
such Event of Default shall have been cured, waived or otherwise eliminated. The
Sponsor and the Administrative Trustees shall file annually with the Property
Trustee a certification as to whether or not they are in compliance with all the
conditions and covenants applicable to them under this Agreement.
12
<PAGE> 19
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Hercules Trust III" as such name may be modified
from time to time by the Administrative Trustees following written notice to the
Delaware Trustee, the Property Trustee and the Holders of Securities. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Hercules
Plaza, 1313 North Market Street, Wilmington, Delaware 19894-0001. On ten
Business Days' prior written notice to the Delaware Trustee, the Property
Trustee and the Holders of Securities, the Administrative Trustees may designate
another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities, (b) use the proceeds from the sale of the Securities to
acquire the Debentures in an aggregate principal amount equal to the aggregate
Liquidation Amount of such Securities, and (c) except as otherwise limited
herein, to engage in only those other activities necessary, advisable or
incidental thereto, including without limitation, those activities specified in
Sections 3.6, 3.8, 3.9, 3.10, 3.11 and/or 3.12.
SECTION 3.4 Authority.
Subject to the limitations provided in this Agreement and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by one or more of the Administrative Trustees in accordance with
their powers shall constitute the act of and serve to bind the Trust and an
action taken by the Property Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Agreement.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Trustee Account or as otherwise provided in this Agreement, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
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SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power, duty and
authority, and are hereby authorized and directed, to cause the Trust to engage
in the following activities:
(a) to execute, deliver, issue and sell the Preferred Securities and
the Common Securities in accordance with this Agreement; provided, however, that
(i) the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities, (ii) there shall be no interests in
the Trust other than the Securities, and (iii) the issuance of Securities shall
be limited to a simultaneous issuance of both Preferred Securities and Common
Securities at the Closing Time and the Option Closing Date, if any;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor to be necessary in order to qualify
or register all or part of the Preferred Securities in any State in which
the Sponsor has determined to qualify or register such Preferred
Securities for sale;
(ii) at the direction of the Sponsor, execute and file an
application, prepared by the Sponsor, to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing or quotation of the Preferred Securities;
(iii) execute and deliver letters, documents, or instruments with
DTC and other Clearing Agencies relating to the Preferred Securities;
(iv) if required, execute and file with the Commission a
registration statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, as the case
may be; and
(v) execute and file any agreement, certificate or other document
which such Administrative Trustee deems necessary or appropriate in
connection with the issuance and sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of Common Securities;
(d) to cause the Trust to enter into such agreements and
arrangements as may be necessary or desirable in connection with the sale of
Preferred Securities to the underwriters
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thereof and the consummation thereof, and to take all action, and exercise all
discretion, as may be necessary or desirable in connection with the consummation
thereof;
(e) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Tax Event;
(f) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section316(c) of the Trust Indenture Act,
Distributions, voting rights, [conversions, exchanges] and redemptions, and to
issue relevant notices to the Holders of Preferred Securities and Holders of
Common Securities as to such actions and applicable record dates;
(g) to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of the Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Administrative Trustee;
(l) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, Registrar for
the Securities or to appoint a Paying Agent [or Conversion Agent] for the
Securities as provided in Section 7.4 except for such time as such power to
appoint a Paying Agent [ or Conversion Agent] is vested in the Property Trustee;
(n) to give prompt written notice to the Property Trustee and to
Holders of the Securities of any notice received from the Debenture Issuer of
its election to defer payments of interest on the Debentures by extending the
interest payment period under the Indenture;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which
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such existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for which
the Trust was created;
(p) to take any action (provided that such action does not
materially adversely affect the interests of Holders), not inconsistent with
this Agreement or with applicable law, that the Administrative Trustees
determine in their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.6, including, but not
limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States Federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States Federal income tax purposes;
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Administrative Trustees, on behalf of
the Trust; and
(r) to execute and deliver and record, file or register, as
applicable, all documents, certificates, agreements or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary, advisable or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Administrative Trustees shall not
take any action that is inconsistent with the purposes and functions of the
Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Administrative Trustees pursuant to
this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust and the Trustees (including the Property Trustee and
the Delaware Trustee) shall not, and the Administrative Trustees shall cause the
Trust not to, engage in any activity other than as required or authorized by
this Agreement. In particular, the Trust shall not:
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(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Agreement and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose or
execute any mortgage in respect of, or pledge, any Trust property;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities;
(vii) so long as any Debentures are held by the Property Trustee,
the Trustees shall not (A) direct the time, method and place of conducting
any proceeding with respect to any remedy available to the Debenture
Trustee, or exercise any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (B) waive any past default that is
waivable under the Indenture, (C) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the
Debentures, or (D) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be required,
without, in each case, obtaining (1) the prior approval of the Holders of
a Majority in Liquidation Amount of all outstanding Securities; provided,
however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior approval of each
Holder of Securities and (2) an Opinion of Counsel delivered to the Trust
from tax counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for
United States Federal income tax purposes on account of such action;
(viii) revoke any action previously authorized or approved by a vote
of the Holders of Preferred Securities except by subsequent vote of such
Holders;
(ix) revoke any action previously authorized or approved by a vote
of the Holders of Common Securities except by subsequent vote of such
Holders; or
(x) undertake (or permit to be undertaken) any activity that would
cause the Trust not to be classified for United States Federal income tax
purposes as a grantor trust.
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SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the Trust
and the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 5.7. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
[The Trust and the Property Trustee shall not convert any Debentures
held by either of them except pursuant to a notice of conversion delivered to
the Conversion Agent by a Holder of Securities.]
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made in respect of
the Debentures held by the Property Trustee, deposit such funds into the
Property Trustee Account and make payments or cause the Paying Agent to
make payments to the Holders of the Preferred Securities and Holders of
the Common Securities from the Property Trustee Account in accordance with
Section 6.1. Funds in the Property Trustee Account shall be held
uninvested until disbursed in accordance with this Agreement. The Property
Trustee Account shall be an account that is maintained with a banking
institution the rating on whose long-term unsecured indebtedness is at
least equal to the rating assigned to the Preferred Securities by a
"nationally recognized statistical rating organization", as that term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the
Common Securities to the extent the Debentures are redeemed or mature;
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders of Securities upon
the occurrence of certain events; and
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(iv) take such ministerial action as may be requested by the
Administrative Trustees in connection with the winding up of the affairs
of or liquidation of the Trust in accordance with this Agreement and the
preparation, execution and filing of a certificate of cancellation or
other appropriate certificates with the Secretary of State of the State of
Delaware and other appropriate governmental authorities.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of this Agreement and the Securities.
(e) Subject to Section 3.9, the Property Trustee shall take any
Legal Action which arises out of or in connection with an Event of Default of
which a Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Agreement or the Trust
Indenture Act and, if the Property Trustee shall have failed to take such Legal
Action, the Holders of the Preferred Securities in at least an aggregate
Liquidation Amount equal to the specified percentage of Holders of Debentures
entitled to take such Legal Action may, to the fullest extent permitted by law,
take such Legal Action without first proceeding against the Property Trustee or
the Trust; provided however, that if an Event of Default has occurred and is
continuing and such event is attributable [either] to [(i)] the failure of the
Debenture Issuer to pay the principal of or premium, if any, or interest on the
Debentures on the date such principal, premium, if any, or interest is otherwise
payable (or in the case of redemption, on the redemption date) [or (ii) the
failure by the Sponsor to deliver the required securities upon an appropriate
conversion right election], then a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of or premium, if any, or interest on the Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder on or after the respective due date specified in the
Debentures [or for enforcement of such conversion rights, as the case may be] (a
"Direct Action"). Except as provided in the preceding sentence, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms
of the Securities and this Agreement; or
(ii) a successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7 (a "Successor
Property Trustee").
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Property Trustee occurs and is continuing, the
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Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of the Securities and this Agreement.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent, the
Property Trustee may authorize one or more Persons to act as additional Paying
Agents and to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all Securities and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. Any such additional
Paying Agent may be removed by the Property Trustee at any time the Property
Trustee remains as Paying Agent and a successor Paying Agent or additional
Paying Agents may be (but are not required to be) appointed at any time by the
Property Trustee while the Property Trustee is acting as Paying Agent.
(j) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 3.6.
Notwithstanding anything expressed or implied to the contrary in
this Agreement or any Annex or Exhibit hereto, the Property Trustee must
exercise the powers set forth in this Section 3.8 in a manner that is consistent
with the purposes and functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Agreement and in the Securities and no implied covenants or
obligations shall be read into this Agreement against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, its own bad faith or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
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a (A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Agreement and in
the Securities and the Property Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement and in the Securities, and no implied covenants
or obligations shall be read into this Agreement against the Property
Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property 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 Property Trustee and
conforming to the requirements of this Agreement; provided, however,
that in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Agreement (but shall not be required to confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein);
(ii) the Property Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Property Trustee, unless it
shall be proved that the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Agreement;
(iv) no provision of this Agreement shall require the Property Trustee
to expend or risk its own funds or otherwise incur personal financial liability
in the performance of any of its duties or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of
this Agreement or indemnity reasonably satisfactory to the Property Trustee
against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Debentures and the Property Trustee
Account shall be to deal with such property in a similar manner as the Property
Trustee deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property Trustee under
this Agreement and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of the Debentures or
the payment of any taxes or assessments levied thereon or in connection
therewith;
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(vii) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree in writing with the
Sponsor. Money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Property Trustee Account maintained
by the Property Trustee pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law; and
(viii) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Sponsor with their respective
duties under this Agreement, nor shall the Property Trustee be liable for any
default or misconduct of the Administrative Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Agreement may be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Agreement, the
Property Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly delivered by
the Sponsor or the Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such counsel and experts
with respect to legal matters or advice within the scope of such experts' area
of expertise shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion, such counsel may be counsel to the
Sponsor or any of its Affiliates, and may include any of its employees; and the
Property Trustee shall have the right at any time to seek instructions
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concerning the administration of this Agreement from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at the
request or direction of any Holder, unless such Holder shall have provided to
the Property Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including reasonable attorneys'
fees and expenses and the expenses of the Property Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by
the Property Trustee in respect of the time, method or place of conducting any
proceeding for any remedy available to the Property Trustee or the exercise of
any trustor power conferred on the Property Trustee under this Agreement;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Property Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be required to
inquire as to the authority of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of this Agreement, both of which
shall be conclusively evidenced by the Property Trustee's or its agent's taking
such action;
(x) whenever in the administration of this Agreement the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Securities which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Securities as would be entitled to direct the Property
Trustee under the terms of the Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii) shall be protected
in conclusively relying on, or acting in accordance with, such instructions;
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(xi) except as otherwise expressly provided by this Agreement,
the Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Agreement; and
(xii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without negligence,
and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement.
(b) No provision of this Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
(c) It is expressly understood and agreed by the parties hereto that in
fulfilling its obligations as Property Trustee hereunder on behalf of the Trust,
(i) any agreements or instruments executed or delivered by The Chase Manhattan
Bank are executed and delivered not in its individual capacity but solely as
Property Trustee under this Agreement in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as representations, warranties, covenants, undertakings and
agreements by The Chase Manhattan Bank in its individual capacity but is made
and intended for the purpose of binding only the Trust, and (iii) under no
circumstances (except with respect to funds delivered to it relating to payments
in respect of the Securities) shall The Chase Manhattan Bank in its individual
capacity be personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Agreement except if such breach or failure is due to any negligence, bad faith
or willful misconduct of the Property Trustee.
SECTION 3.11 Delaware Trustee.
(a) Notwithstanding any other provision of this Agreement
other than Section 5.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrative Trustees or the Property Trustee
described in this Agreement (except as required under the Business Trust Act).
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
(b) It is expressly understood and agreed by the parties
hereto that in fulfilling its obligations as Delaware Trustee hereunder on
behalf of the Trust, (i) any agreements or instruments executed or delivered by
Chase Manhattan Bank Delaware are executed and
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delivered not in its individual capacity but solely as Delaware Trustee under
this Agreement in the exercise of the powers and authority conferred and vested
in it, (ii) each of the representations, undertakings and agreements herein made
on the part of the Trust is made and intended not as representations,
warranties, covenants, undertakings and agreements by Chase Manhattan Bank
Delaware in its individual capacity but is made and intended for the purpose of
binding only the Trust, and (iii) under no circumstances shall Chase Manhattan
Bank Delaware in its individual capacity be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or failure
of any obligation, representation, warranty, or covenant made or undertaken by
the Trust under this Agreement except if such breach or failure is due to any
negligence, bad faith or willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or applicable
law, each Administrative Trustee, individually, is authorized to execute and
deliver on behalf of the Trust any documents, agreements, instruments or
certificates that the Administrative Trustees have the power and authority to
execute and deliver pursuant to this Agreement.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Agreement and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Agreement or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions of Article VIII
hereof, shall have existence until [35 years from execution].
SECTION 3.15 Mergers.
(a) The Trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person, except as
described in Section 3.15(b) and (c) and except with respect to the distribution
of all Debentures to Holders of Securities pursuant to Section 8.1(a)(iii).
(b) The Trust may, at the request of the Sponsor, with the consent of
the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, merge with or into,
convert into, consolidate, amalgamate, or be replaced by, or convey,
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transfer or lease its properties and assets as an entirety or substantially as
an entirety to, a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the
"Successor Securities") so long as the Successor Securities
rank the same as the Securities rank with respect to
Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Sponsor expressly appoints a trustee of the Successor
Entity that possesses the same powers and duties as the Property Trustee with
respect to the Debentures;
(iii) the Successor Securities (excluding any securities
substituted for any Common Securities) are listed, quoted or included for
trading, or any Successor Securities will be listed, quoted or included for
trading, upon notification of issuance, on any national securities exchange or
with any other organization on which the Preferred Securities are then listed,
quoted or included;
(iv) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) or the Debentures to be
downgraded or placed under surveillance or review by any nationally recognized
statistical rating organization that publishes a rating on the Preferred
Securities or the Debentures;
(v) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Securities (including the
holders of any Successor Securities) in any material respect (other than with
respect to any dilution of the interests of such Holders or holders, as the case
may be, in the Successor Entity);
(vi) the Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Sponsor has
received an opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
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(A) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including the holders of any
Successor Securities) in any material respect (other than with
respect to any dilution of the interests of such Holders or
holders, as the case may be, in the Successor Entity); and
(B) following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease,
neither the Trust nor the Successor Entity, if any, will be
required to register as an Investment Company; and
(viii) the Sponsor or any permitted successor or assignee owns
all of the common securities of the Successor Entity and guarantees the
obligations of the Successor Entity under the Successor Securities at
least to the extent provided by the Preferred Securities Guarantee and
the Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the
Securities, merge with or into, convert into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, any other Person or permit any
other Person to merge with or into, consolidate, amalgamate, or replace it if
such merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity, if any, not to
be classified as a grantor trust for United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time and on any Option Closing Date, the Sponsor will
purchase all of the Common Securities then issued by the Trust, in an amount
equal to at least 3% of the total capital of the Trust, at the same time as the
Preferred Securities are issued and sold. The aggregate Liquidation Amount of
Common Securities at any time shall not be less than 3% of the total capital of
the Trust.
For so long as the Preferred Securities remain outstanding, the Sponsor
covenants (i) to maintain, directly or indirectly, 100% ownership of the Common
Securities; provided, however, that any permitted successor of the Sponsor under
the Indenture may succeed to the Sponsor's interest in the Common Securities,
(ii) to use its best efforts to cause the Trust (a) to remain a business trust,
except in connection with a distribution of Debentures to the Holders of
Securities in liquidation of the Trust, the [conversion, exchange or] redemption
of all the Securities, or certain mergers, consolidations or amalgamations, each
as permitted by this
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Agreement, and not to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by this Agreement, and (b) to otherwise continue to be
classified as a grantor trust for United States federal income tax purposes,
(iii) to use its best efforts to ensure that the Trust shall not be an
Investment Company for purposes of the Investment Company Act, (iv) to use its
best efforts to cause each Holder of Securities to be treated as owning an
undivided beneficial interest in the Debentures and (v) to take no action which
would cause the dissolution, liquidation or winding up of the Trust, except as
otherwise provided in this Agreement.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust, execute and file with the
Commission the registration statement on Form S-3 pertaining to the Preferred
Securities, including any amendments thereto and to register the Preferred
Securities Guarantee related thereto;
(b) to determine the jurisdictions in which to take appropriate action
to qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare for execution and
filing any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
jurisdictions;
(c) if deemed necessary or advisable by the Sponsor, to prepare for
filing by the Trust an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing or quotation
of the Preferred Securities;
(d) to prepare for filing by the Trust, execute and file with the
Commission a registration statement on Form 8-A, including any amendments
thereto, relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, as the case may be, including any amendments
thereto; and
(e) to negotiate the terms of, execute, enter into and deliver the
Purchase Agreement providing for the sale of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of Preferred
Securities to bring one or more Direct Actions under the circumstances specified
in this Agreement.
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ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities;
provided, however, that, the number of Trustees shall in no event be less than
two (2); provided further that (1) one Trustee shall be a Person meeting the
requirements of Section 5.2 (the "Delaware Trustee"); (2) there shall be at
least one Trustee who is an employee or officer of, or is affiliated with the
Sponsor (an "Administrative Trustee"); and (3) one Trustee shall be the Property
Trustee for so long as this Agreement is required to qualify as an indenture
under the Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements. Notwithstanding the above,
unless an Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust's property may at the
time be located, the Holders of a Majority in Liquidation Amount of the Common
Securities acting as a class at a meeting of the Holders of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more Persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of the Trust's property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of this Agreement. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
For so long as required by the Business Trust Act, the Delaware Trustee
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided, however, if the Property Trustee has its principal
place of business in the State of Delaware and
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otherwise meets the requirements of applicable law, then the Property Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the "Property Trustee")
which shall act as Property Trustee and which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Commission to act as an indenture trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by federal, state, territorial or
District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to above, then for
the purposes of this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Agreement for purposes of clause (i) of the first
provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
Telecopier: (215) 988-8372
Telephone: (215) 988-1329
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SECTION 5.4 Certain Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
SECTION 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
Israel J. Floyd
Jan M. King
Stuart C. Shears
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Telephone: (302) 594-5000
Telecopier: (302) 594-5210
(a) Except as expressly set forth in this Agreement and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Administrative Trustee acting alone is authorized to execute on behalf of the
Trust any documents which the Administrative Trustees have the power and
authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Department
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Telecopier: (302) 984-4903
Telephone: (302) 428-3372
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be
continuing after the issuance of any Securities, by vote of the Holders
of a Majority in Liquidation Amount of the Common Securities voting as
a class at a meeting of the Holders of the Common Securities; and
(iii) if an Event of Default shall have occurred and be
continuing after the issuance of the Securities, with respect to the
Property Trustee or the Delaware Trustee, by vote of Holders of a
Majority in Liquidation Amount of the Preferred Securities voting as a
class at a meeting of Holders of the Preferred Securities (it being
understood that in no event will the Holders of the Preferred
Securities have the right to vote, appoint, remove or replace the
Administrative Trustees, which voting rights are exclusively vested in
the Holder of the Common Securities).
(b) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.7(a) until a Successor Property Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Administrative Trustees and
the Sponsor; and
(c) the Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 5.7(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the removed Delaware Trustee, the Property Trustee (if the
removed Delaware Trustee is not also the Property Trustee), the Administrative
Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the other
Trustees, the Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided,
however, that:
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(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor, the Delaware Trustee (if the resigning
Property Trustee is not also the Delaware Trustee) and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the Holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Property Trustee (if the resigning Delaware Trustee is not also the
Property Trustee), the Sponsor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities or, if an Event of Default
shall have occurred and be continuing after the issuance of the Securities, the
Holders of the Preferred Securities shall use their best efforts to promptly
appoint a Successor Delaware Trustee or Successor Property Trustee, as the case
may be, if the Property Trustee or the Delaware Trustee delivers an instrument
of resignation in accordance with this Section 5.7.
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.7 within 60 days after delivery of an instrument of resignation or removal,
the Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
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SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to dissolve, terminate or annul the Trust or to terminate this
Agreement. Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with Section 5.7, the Administrative Trustees in office,
regardless of their number, shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Agreement.
SECTION 5.10 Meetings.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Agreement, any action of the Administrative Trustees
may be taken at a meeting by vote of a majority of the Administrative Trustees
present (whether in person or by telephone) and eligible to vote with respect to
such matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Administrative Trustees. In the event there is
only one Administrative Trustee, any and all action of such Administrative
Trustee shall be evidenced by a written consent of such Administrative Trustee.
SECTION 5.11 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or
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otherwise as the Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the provisions of
this Agreement.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee or
any Administrative Trustee that is not a natural person, as the case may be, may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee, as the case may be, shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
the Property Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the case may be,
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, such successor shall
notify the Sponsor and the Trust promptly of its succession.
SECTION 5.13 Compensation.
The Sponsor agrees:
(a) to pay to the Property Trustee and the Delaware Trustee from time
to time such compensation as shall be agreed in writing between the Company and
the Property Trustee and the Delaware Trustee, respectively, for all services
rendered by them hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust); and
(b) to reimburse the Property Trustee and the Delaware Trustee upon
their request for reasonable expenses, disbursements and advances incurred or
made by the Property Trustee or the Delaware Trustee, respectively, in
accordance with any provision of this Agreement (including the reasonable
compensation and the expenses and advances of its agents and counsel), except
any such expense or advance as may be attributable to their negligence, willful
misconduct or bad faith.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the applicable
terms of the relevant Holder's Securities. Distributions shall be made on the
Preferred Securities and the Common Securities in accordance with the respective
terms and preferences set forth herein and in Annex I. If and to the extent that
the Debenture Issuer makes a payment of interest (including
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any compounded interest and additional interest), premium and/or principal on
the Debentures held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed, to the
extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the
"Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities"). The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Agreement, the
Securities so issued shall be validly issued, fully paid and non-assessable.
(d) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Agreement, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Agreement.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by an
Administrative Trustee. In case any Administrative Trustee of the Trust who
shall have signed any of the Securities shall cease to be such Administrative
Trustee before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the Person who signed such
Securities had not ceased to be such Administrative Trustee; and any Securities
may be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Administrative Trustees of the Trust,
although at the date of the execution and delivery of this Agreement any such
person was not an Administrative Trustee.
(b) One Administrative Trustee shall sign the Preferred Securities for
the Trust by manual or facsimile signature.
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A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Agreement. A Common Security shall be valid upon
execution by an Administrative Trustee without any act of the Property Trustee.
Upon a written order of the Trust signed by one Administrative Trustee,
the Property Trustee shall authenticate the Preferred Securities for original
issue.
The aggregate number of Preferred Securities outstanding at any time
shall not exceed the number set forth in the terms in Annex I hereto except as
provided in Section 7.6.
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so. Each
reference in this Agreement to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee hereunder with respect to the Sponsor or an Affiliate.
SECTION 7.3 Form and Dating.
The Preferred Securities and the Property Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which is
hereby incorporated in and expressly made a part of this Agreement. The
Securities may be in definitive or global form and may be printed, lithographed
or engraved or may be produced in any other manner as is reasonably acceptable
to an Administrative Trustee, as evidenced by the execution thereof. The
Securities may have letters, CUSIP or other numbers, notations or other marks of
identification or designation and such legends or endorsements required by law,
stock exchange or quotation system rule, agreements to which the Trust is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Trust). An Administrative Trustee, at
the direction of the Sponsor, shall furnish any such legend not contained in
Exhibits A-1 or A-2 to the Property Trustee in writing. Each Preferred Security
shall be dated the date of its authentication. The terms and provisions of the
Securities set forth in Annex I and the forms of Securities set forth in
Exhibits A-1 and A-2 are part of the terms of this Agreement and to the extent
applicable, the Property Trustee and the Sponsor, by their execution and
delivery of this Agreement, expressly agree to such terms and provisions and to
be bound thereby.
The following four paragraphs shall apply only to any Global Preferred
Securities:
The Preferred Securities shall be issued in the form of one or more
permanent global Securities in definitive, fully registered form without
Distribution coupons with the appropriate global legends set forth in Exhibit
A-1 hereto (a "Global Preferred Security"), which shall be deposited on behalf
of the purchasers of the Preferred Securities represented thereby
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with the Property Trustee, as custodian for the Clearing Agency, and registered
in the name of the Clearing Agency or a nominee of the Clearing Agency, duly
executed by the Trust and authenticated by the Property Trustee as hereinafter
provided. The number of Preferred Securities represented by the Global Preferred
Security may from time to time be increased or decreased by adjustments made on
the records of the Property Trustee and the Clearing Agency or its nominee as
hereinafter provided. The Holder of a Global Preferred Security may grant
proxies and otherwise authorize any Person, including Participants and Persons
that may hold interests through Participants, to take any action which such
Holder is entitled to take under this Agreement or the Securities.
An Administrative Trustee shall execute and the Property Trustee shall,
in accordance with this Section 7.3, authenticate and make available for
delivery initially one or more Global Preferred Securities that (i) shall be
registered in the name of Cede & Co. or other nominee of such Clearing Agency
and (ii) shall be delivered by the Property Trustee to such Clearing Agency or
pursuant to such Clearing Agency's written instructions or held by the Property
Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency ("Participants")
shall have no rights under this Agreement with respect to any Global Preferred
Security held on their behalf by the Clearing Agency or by the Property Trustee
as the custodian of the Clearing Agency or under such Global Preferred Security,
and the Clearing Agency may be treated by the Trust, the Property Trustee and
any agent of the Trust or the Property Trustee as the absolute owner of such
Global Preferred Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trust, the Property Trustee or any
agent of the Trust or the Property Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Clearing Agency or
impair, as between the Clearing Agency and its Participants, the operation of
customary practices of such Clearing Agency governing the exercise of the rights
of a holder of a beneficial interest in any Global Preferred Security.
Except as provided in Section 9.2, owners of beneficial interests in a
Global Preferred Security will not be entitled to receive physical delivery of
Preferred Securities in definitive form ("Definitive Preferred Securities").
SECTION 7.4 Registrar and Paying Agent.
The Trust shall maintain in the Borough of Manhattan, The City of New
York, (i) an office or agency where Preferred Securities may be presented for
registration of transfer ("Registrar") and (ii) an office or agency where
Preferred Securities may be presented for payment ("Paying Agent") [ and (iii)
an office or agency where Preferred Securities may be presented for conversion
or exchange ("Conversion Agent")]. The Registrar shall keep a register of the
Preferred Securities and of their transfer. The Trust may appoint the Registrar
and the Paying Agent [and the Conversion Agent] and may appoint one or more
co-registrars and one or more additional paying agents [and conversion agents]
in such other locations as it shall determine. The term "Registrar" includes any
additional registrar and the term "Paying Agent"
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includes any additional paying agent [and the term "Conversion Agent" includes
any additional conversion agent]. The Trust may change any Registrar or Paying
Agent [or Conversion Agent] without prior notice to any Holder. The
Administrative Trustees shall notify the Property Trustee of the name and
address of any Agent not a party to this Agreement. If the Trust fails to
appoint or maintain another entity as Registrar or Paying Agent [or Conversion
Agent], the Property Trustee shall act as such, and as Paying Agent the Property
Trustee shall have the rights set forth in Section 3.8(i). The Trust or any of
its Affiliates may act as Registrar or Paying Agent [or Conversion Agent]. The
Trust shall act as Registrar and Paying Agent [and Conversion Agent] for the
Common Securities.
Any Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' prior written notice to the Property Trustee, the Administrative
Trustees and the Sponsor. In the event that the Property Trustee shall no longer
be the Paying Agent, the Trust shall appoint a successor Paying Agent (which
shall be a bank or trust company acceptable to the Sponsor) to act as Paying
Agent.
The Trust initially appoints the Property Trustee as Registrar
and Paying Agent [and Conversion Agent] for the Preferred Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of liquidation amounts or Distributions on the Securities and
will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee. The
Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment over
to the Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the money. If the
Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If a Holder of a Security claims that a Security owned by it has been
lost, destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or, in the case of the Preferred Securities, to the
Property Trustee, an Administrative Trustee shall execute and the Property
Trustee shall authenticate and make available for delivery a replacement
Security if the Property Trustee's and the Trust's requirements, as the case may
be, are met. An indemnity bond must be provided by the Holder which, in the
judgment of the Property Trustee, is sufficient to protect the Trustees, the
Sponsor or any authenticating agent
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from any loss which any of them may suffer if a Security is replaced. The Trust
may charge such Holder for its expenses in replacing a Security.
Every replacement Security is an additional beneficial
interest in the Trust.
SECTION 7.7 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the Preferred
Securities authenticated by the Property Trustee except for those cancelled by
it, those delivered to it for cancellation, and those described in this Section
as not outstanding.
If a Preferred Security is replaced, paid or purchased pursuant to
Section 7.6 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased Preferred
Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with the
terms of this Agreement, they cease to be outstanding and Distributions thereon
shall cease to accumulate.
A Preferred Security does not cease to be outstanding because the
Trust, the Sponsor or an Affiliate of the Sponsor holds such Preferred Security.
SECTION 7.8 Preferred Securities in Treasury.
In determining whether the Holders of the required amount of Preferred
Securities have concurred in any direction, waiver or consent, Preferred
Securities owned by the Trust, the Sponsor or an Affiliate of the Sponsor, as
the case may be, shall be disregarded and deemed not to be outstanding, except
that for the purposes of determining whether the Property Trustee shall be fully
protected in relying on any such direction, waiver or consent, only Preferred
Securities which a Responsible Officer of the Property Trustee actually knows
are so owned shall be so disregarded.
SECTION 7.9 Temporary Securities.
Until Definitive Securities are ready for delivery, the Administrative
Trustees may prepare and, in the case of the Preferred Securities, the Property
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations that
the Trust considers appropriate for temporary Securities. Without unreasonable
delay, the Administrative Trustees shall prepare and, in the case of the
Preferred Securities, the Property Trustee shall authenticate Definitive
Securities in exchange for temporary Securities.
SECTION 7.10 Cancellation.
The Trust at any time may deliver Preferred Securities to the Property
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Property Trustee any
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Preferred Securities surrendered to them for registration of transfer,
redemption, exchange [, conversion] or payment. The Property Trustee shall
promptly cancel all Preferred Securities surrendered for registration of
transfer, redemption, exchange, payment, replacement [, conversion] or
cancellation and shall dispose of cancelled Preferred Securities as the Trust
directs, provided that the Property Trustee shall not be obligated to destroy
Preferred Securities. The Trust may not issue new Preferred Securities to
replace Preferred Securities that it has paid or redeemed or that have been
delivered to the Property Trustee for cancellation or that any Holder has
exchanged [or converted].
SECTION 7.11 CUSIP Numbers.
The Trust, in issuing the Preferred Securities, may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders of Preferred
Securities; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Preferred
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Preferred
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Sponsor will promptly notify the Property Trustee
of any change in the CUSIP numbers.
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ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall automatically dissolve upon the first to occur
of the following events:
(i) the bankruptcy of the Sponsor;
(ii) (A) the filing of a certificate of dissolution or liquidation
or its equivalent with respect to the Sponsor or (B) the revocation of the
Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) the distribution of a Like Amount of the Debentures to the
Holders of the Securities, provided that the Property Trustee has received
written notice from the Sponsor directing the Property Trustee to dissolve
the Trust (which direction is optional and, except as otherwise expressly
provided herein, within the discretion of the Sponsor), and provided,
further, that such dissolution is conditioned on the receipt by the
Administrative Trustees' receipt of an opinion of an independent tax
counsel experienced in such matters (a "No Recognition Opinion") to the
effect that the Holders of the Securities will not recognize any gain or
loss for United States Federal income tax purposes as a result of the
dissolution of the Trust and the distribution of the Debentures;
(iv) the entry of a decree of judicial dissolution of the Trust by a
court of competent jurisdiction;
(v) the [conversion, exchange or] redemption of all of the
Securities and the payment to the Holders of any and all amounts necessary
therefor, all in accordance with the terms of the Securities; or
(vi) the expiration of the term of the Trust provided in Section
3.14.
(b) As soon as is practicable upon completion of winding up of the
Trust following the occurrence of an event referred to in Section 8.1(a), the
Administrative Trustees shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in accordance
with the Business Trust Act.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Agreement and in the
terms of the Securities. To the fullest extent permitted by law, any transfer or
purported transfer of any Security not made in accordance with this Agreement
shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) To the fullest extent permitted by law, the Sponsor may not
transfer the Common Securities except for any transfer (whether voluntarily or
by operation of law) permitted under Article 5 of the Indenture.
(d) The Administrative Trustees shall provide for the registration
of Securities and of the transfer of Securities, which will be effected without
charge but only upon payment (with such indemnity as the Administrative Trustees
may require) in respect of any tax or other governmental charges that may be
imposed in relation to it. Upon surrender for registration of transfer of any
Securities, the Administrative Trustees shall cause one or more new Securities
to be issued in the name of the designated transferee or transferees. Every
Security surrendered for registration of transfer or exchange [or for
conversion,] shall be accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Security surrendered for
registration of transfer [or for conversion,] shall be canceled by the
Administrative Trustees. A transferee of a Security shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Security. By acceptance of a Security, each transferee
shall be deemed to have agreed to be bound by this Agreement.
SECTION 9.2 Transfer Procedures and Restrictions
(a) Transfer and Exchange of Definitive Preferred Securities. When
Definitive Preferred Securities are presented to the Registrar:
(x) to register the transfer of such Definitive Preferred
Securities; or
(y) to exchange such Definitive Preferred Securities which became
mutilated, destroyed, defaced, stolen or lost, for an equal liquidation
amount of Definitive Preferred Securities,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Preferred Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a
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written instrument of transfer in form reasonably satisfactory to the Property
Trustee and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(b) Transfer of a Definitive Preferred Security for a Beneficial
Interest in a Global Preferred Security. Upon receipt by the Property Trustee of
a Definitive Preferred Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Property Trustee, together
with written instructions directing the Property Trustee to make, or to direct
the Clearing Agency to make, an adjustment on its books and records with respect
to the Global Preferred Security to reflect an increase in the Liquidation
Amount of the Preferred Securities represented by such Global Preferred
Security, then the Property Trustee shall cancel such Definitive Preferred
Security and cause, or direct the Clearing Agency to cause, the aggregate
Liquidation Amount of Preferred Securities represented by the appropriate Global
Preferred Security to be increased accordingly. If no Global Preferred
Securities are then outstanding, an Administrative Trustee shall execute on
behalf of the Trust and the Property Trustee shall authenticate, upon written
order of any Administrative Trustee, a Global Preferred Security representing an
appropriate Liquidation Amount of Preferred Securities.
(c) Transfer and Exchange of Global Preferred Securities. Subject to
Section 9.2(d), the transfer and exchange of Global Preferred Securities or
beneficial interests therein shall be effected through the Clearing Agency in
accordance with this Agreement and the procedures of the Clearing Agency
therefor.
(d) Transfer of a Beneficial Interest in a Global Preferred Security
for a Definitive Preferred Security.
(i) A Global Preferred Security deposited with the Clearing Agency
or with the Property Trustee as custodian for the Clearing Agency pursuant
to Section 7.3 shall be transferred to the beneficial owners thereof in
the form of Definitive Preferred Securities only if such transfer complies
with Section 9.2(c) and (1) the Clearing Agency notifies the Trust that it
is unwilling or unable to continue as Clearing Agency for such Global
Preferred Security or if at any time such Clearing Agency ceases to be a
"clearing agency" registered under the Exchange Act and, in each case, a
clearing agency is not appointed by the Sponsor within 90 days of receipt
of such notice or of becoming aware of such condition, (2) a Default or an
Event of Default has occurred and is continuing or (3) the Trust at its
sole discretion elects to cause the issuance of Definitive Preferred
Securities.
(ii) Any Global Preferred Security that is transferable to the
beneficial owners thereof in the form of Definitive Preferred Securities
pursuant to this Section 9.2(d) shall be surrendered by the Clearing
Agency to the Property Trustee located in the Borough of Manhattan, The
City of New York, to be so transferred, in whole or from time to time in
part, without charge, and the Property Trustee shall authenticate and make
available for delivery, upon such transfer of each portion of such Global
Preferred Security, an equal aggregate Liquidation Amount of Securities of
authorized denominations in the form of
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Definitive Preferred Securities. Any portion of a Global Preferred
Security transferred pursuant to this Section shall be registered in such
names as the Clearing Agency shall direct.
In the event of the occurrence of any of the events specified in clause
(i) above, the Administrative Trustees will promptly make available to the
Property Trustee a reasonable supply of Definitive Preferred Securities in fully
registered form without Distribution coupons.
(e) Restrictions on Transfer and Exchange of Global Preferred
Securities. Notwithstanding any other provisions of this Agreement (other than
the provisions set forth in subsection (d) of this Section 9.2), a Global
Preferred Security may not be transferred as a whole except by the Clearing
Agency to a nominee of the Clearing Agency or another nominee of the Clearing
Agency or by the Clearing Agency or any such nominee to a successor Clearing
Agency or a nominee of such successor Clearing Agency.
(f) Cancellation or Adjustment of Global Preferred Security. At such
time as all beneficial interests in a Global Preferred Security have either been
exchanged for Definitive Preferred Securities to the extent permitted by this
Agreement or redeemed, repurchased [, converted or otherwise exchanged] or
canceled in accordance with the terms of this Agreement, such Global Preferred
Security shall be returned to the Clearing Agency for cancellation or retained
and canceled by the Property Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Preferred Security is exchanged for
Definitive Preferred Securities, Preferred Securities represented by such Global
Preferred Security shall be reduced and an adjustment shall be made on the books
and records of the Property Trustee (if it is then the custodian for such Global
Preferred Security) with respect to such Global Preferred Security, by the
Property Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Preferred
Securities.
(i) To permit registrations of transfers and exchanges, an
Administrative Trustee shall execute and the Property Trustee shall
authenticate Definitive Preferred Securities and Global Preferred
Securities at the Registrar's request in accordance with the terms of this
Agreement.
(ii) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as the Trust or
the Sponsor may require) in respect of any tax or other governmental
charge that may be imposed in relation to it.
(iii) The Registrar shall not be required to register the transfer
of or exchange of (a) Preferred Securities during a period beginning at
the opening of business 15 days before the day of mailing of a notice of
redemption or any notice of selection of Preferred Securities for
redemption and ending at the close of business on the day of such mailing;
or (b) any Preferred Security so selected for redemption in whole or in
part, except the unredeemed portion of any Preferred Security being
redeemed in part.
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(iv) All Preferred Securities issued upon any registration of
transfer or exchange pursuant to the terms of this Agreement shall
evidence the same security and shall be entitled to the same benefits
under this Agreement as the Preferred Securities surrendered upon such
registration of transfer or exchange.
(h) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no responsibility or obligation
to any beneficial owner of a Global Preferred Security, a Participant in
the Clearing Agency or other Person with respect to the accuracy of the
records of the Clearing Agency or its nominee or of any Participant
thereof, with respect to any ownership interest in the Preferred
Securities or with respect to the delivery to any Participant, beneficial
owner or other Person (other than the Clearing Agency) of any notice
(including any notice of redemption) or the payment of any amount, under
or with respect to such Preferred Securities. All notices and
communications to be given to the Holders and all payments to be made to
Holders under the Preferred Securities shall be given or made only to or
upon the order of the Holders (which shall be the Clearing Agency or its
nominee in the case of a Global Preferred Security). The rights of
beneficial owners in any Global Preferred Security shall be exercised only
through the Clearing Agency subject to the applicable rules and procedures
of the Clearing Agency. The Property Trustee may conclusively rely and
shall be fully protected in relying upon information furnished by the
Clearing Agency or any agent thereof with respect to its Participants and
any beneficial owners.
(ii) The Property Trustee and Registrar shall have no obligation or
duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Agreement or under applicable
law with respect to any transfer of any interest in any Preferred Security
(including any transfers between or among Clearing Agency Participants or
beneficial owners in any Global Preferred Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the
terms of this Agreement, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
SECTION 9.3 Deemed Security Holders.
The Trust, the Trustees, the Registrar and the Paying Agent may
treat the Person in whose name any Security shall be registered on the books and
records of the Trust as the sole owner and Holder of such Security for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Security on the part of any Person other than such Holder,
regardless of any notice to the contrary.
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SECTION 9.4 Book Entry Interests.
Global Preferred Securities shall initially be registered on the
books and records of the Trust in the name of Cede & Co., the nominee of the
Clearing Agency, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Preferred Securities, except as
provided in Section 9.2. Unless and until Definitive Preferred Securities have
been issued to the Preferred Security Beneficial Owners pursuant to Section 9.2:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Agreement (including the payment
of Distributions on the Global Preferred Securities and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificates and shall have
no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Agreement, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Participants,
including receiving and transmitting payments of Distributions on the
Global Certificates to such Participants. DTC will make book entry
transfers among the Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred Security
Holders is required to be given by a Trustee under this Agreement, such Trustee
shall give all such notices and communications specified herein to be given to
the Holders of Global Preferred Securities to the Clearing Agency and shall have
no notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to the Preferred Securities.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Agreement, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of Securities any
deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and obligations
of the Trust (other than with respect to the Securities) to the extent not
satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Agreement or by law,
except that this provision shall not be deemed to modify Section 3.9(b).
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
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SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Agreement shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Agreement. The provisions of
this Agreement, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Person and any Indemnified Person; or
(ii) whenever this Agreement or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a
manner that is, or provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Agreement or by
applicable law.
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SECTION 10.4 Indemnification.
(a)(i) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by reason of the
fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees and expenses), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit
by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees and expenses) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust and
except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person shall have
been adjudged to be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such Company Indemnified Person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other
court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
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(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Administrative Trustees by a majority vote of a Quorum consisting of
such Administrative Trustees who were not parties to such action, suit or
proceeding, (2) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrative Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees and expenses) incurred by a
Company Indemnified Person in defending a civil, criminal, administrative
or investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 10.4(a) shall be paid by the Sponsor in advance
of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such Company Indemnified Person to
repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Sponsor as authorized in this Section
10.4(a). Notwithstanding the foregoing, no advance shall be made by the
Sponsor if a determination is reasonably and promptly made (1) by the
Administrative Trustees by a majority vote of a Quorum of disinterested
Administrative Trustees, (2) if such a Quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Administrative Trustees so
directs, by independent legal counsel in a written opinion or (3) by the
Common Security Holder of the Trust, that, based upon the facts known to
the Administrative Trustees, counsel or the Common Security Holder at the
time such determination is made, such Company Indemnified Person acted in
bad faith or in a manner that such Person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall
any advance be made in instances where the Administrative Trustees,
independent legal counsel or Common Security Holder reasonably determine
that such person deliberately breached his duty to the Trust or its Common
or Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Sponsor
or Preferred Security Holders of the Trust or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
10.4(a) shall be deemed to be provided by a contract between the Sponsor
and each Company Indemnified Person who serves in such capacity at any
time while this Section 10.4(a) is in effect. Any repeal or modification
of this Section 10.4(a) shall not affect any rights or obligations then
existing.
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(vii) The Sponsor or the Trust may purchase and maintain insurance
on behalf of any Person who is or was a Company Indemnified Person against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Sponsor
would have the power to indemnify him against such liability under the
provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent entity, or is
or was serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall stand in the
same position under the provisions of this Section 10.4(a) with respect to
the resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided
when authorized or ratified, continue as to a Person who has ceased to be
a Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Sponsor agrees to indemnify the (i) Property Trustee, (ii)
the Delaware Trustee, (iii) any Affiliate of the Property Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based on the income
of such Fiduciary Indemnified Person) incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. With respect
to the Property Trustee, this provision shall not be deemed to modify Section
3.9(b) or the Trust Indenture Act. The obligation to indemnify as set forth in
this Section 10.4(b) shall survive the resignation or removal of the Property
Trustee or the Delaware Trustee and the satisfaction and discharge of this
Agreement.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be
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deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States Federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States Federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrative Trustees shall
endeavor to deliver all such information statements within 30 days after the end
of each Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States Federal
income tax return, on a Form 1041
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or such other form required by United States Federal income tax law, and any
other annual income tax returns required to be filed by the Administrative
Trustees on behalf of the Trust with any state or local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided, however, that all payments of funds
in respect of the Debentures held by the Property Trustee shall be made directly
to the Property Trustee Account and no other funds of the Trust shall be
deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States Federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Administrative Trustees to assist them in determining the
extent of, and in fulfilling, the Trust's withholding obligations. The
Administrative Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and pay over
any amounts to any authority with respect to Distributions or allocations to any
Holder, the amount withheld shall be deemed to be a Distribution in the amount
of the withholding to the Holder. In the event of any claim of excess
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by the amount
of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Agreement or by any
applicable terms of the Securities, this Agreement may only be amended by a
written instrument approved and executed by:
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(i) the Sponsor and the Administrative Trustees (or, if there are
more than two Administrative Trustees, a majority of the Administrative
Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee;
and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from each of
the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Agreement (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Property Trustee,
the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Agreement (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor
or the Trust) that such amendment is permitted by, and conforms to,
the terms of this Agreement (including the terms of the Securities)
and that all conditions precedent to the execution and delivery of
such amendment have been satisfied; and
(iii) to the extent the result of such amendment would:
(A) cause the Trust to fail to be classified for purposes of
United States Federal income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
(c) At such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of the Securities may be effected only
with such additional requirements as may be set forth in the
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terms of such Securities; provided, however, that, without the consent of each
Holder of the Securities, this Agreement may not be amended to (i) change the
Distribution rate (or manner of calculation of the Distribution rate), amount,
timing or currency or otherwise adversely affect the method of any required
payment, (ii) change the purposes of the Trust, (iii) authorize the issuance of
any additional beneficial interests in the Trust, (iv) change the [conversion,
exchange or] redemption provisions, (v) change the conditions precedent for the
Sponsor to elect to dissolve the Trust and distribute the Debentures to the
Holders of the Securities, (vi) change the Liquidation Distribution or other
provisions relating to the distribution of amounts payable upon the dissolution
and liquidation of the Trust, (vii) affect the limited liability of any Holder
of the Securities or (viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on or after the due
date therefor (or in the case of redemption, on the Redemption Date) [or for the
conversion or the exchange of Securities in accordance with their terms].
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article
V to increase or decrease the number of, and to appoint and remove, Trustees
shall not be amended without the consent of the Holders of a Majority in
Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 12.1(c), this Agreement may be amended
by the Sponsor and the Trustees without the consent of the Holders of the
Securities to:
(i) cure any ambiguity, correct or supplement any provision in this
Agreement that may be inconsistent with any other provision of this
Agreement or make any other provisions with respect to matters or
questions arising under this Agreement not inconsistent with any other
provisions of this Agreement;
(ii) modify, eliminate or add to any provisions of this Agreement to
such extent as shall be necessary to ensure that the Trust will be
classified for United States Federal income tax purposes as a grantor
trust at all times that any Securities are outstanding or to ensure that
the Trust will not be required to register as an Investment Company under
the Investment Company Act;
provided, however, that, in each case, such action shall not adversely affect in
any material respect the interests of the Holders of the Securities, and any
such amendments of this Agreement shall become effective when notice thereof is
given to the Holders of the Securities.
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SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Administrative Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Agreement, the terms of
the Securities or the rules of any stock exchange or quotation system or market
on which the Preferred Securities are listed or admitted for trading. The
Administrative Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in Liquidation Amount of the
Securities of such class. Such direction shall be given by delivering to the
Administrative Trustees one or more notices in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the general
or specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the security certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Agreement or the rules of any
stock exchange or quotation system or market on which the Preferred Securities
are listed or admitted for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in Liquidation
Amount that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in writing.
(c) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least seven days and not more
than 60 days before the date of such meeting. The Administrative Trustees
may specify that any written ballot submitted to the Security Holders for
the purpose of taking any action without a meeting shall be returned to
the Trust within the time specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration
of eleven months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the Holder of
Securities
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executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Administrative Trustees or by such other Person that the
Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Agreement, the terms of the
Securities, the Trust Indenture Act or the listing rules of any stock
exchange or quotation system or market on which the Preferred Securities
are then listed or trading, otherwise provides, the Administrative
Trustees, in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including notice of the
time, place or purpose of any meeting at which any matter is to be voted
on by any Holders of Securities, waiver of any such notice, action by
consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Agreement, and each
Successor Property Trustee represents and warrants, as applicable, to the Trust
and the Sponsor at the time of the Successor Property Trustee's acceptance of
its appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or a State of the
United States, as the case may be, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
this Agreement;
(b) the execution, delivery and performance by the Property Trustee
of the Agreement have been duly authorized by all necessary corporate action on
the part of the Property Trustee. The Agreement has been duly executed and
delivered by the Property Trustee under New York law and constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
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generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement by the
Property Trustee do not conflict with or constitute a breach of the charter or
by-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration with
or notice to, any federal or New York State banking authority is required for
the execution, delivery or performance by the Property Trustee of this
Agreement.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Agreement, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) the Delaware Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or the State of
Delaware, as the case may be, with corporate power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Agreement;
(b) the execution, delivery and performance by the Delaware Trustee
of this Agreement have been duly authorized by all necessary corporate action on
the part of the Delaware Trustee. This Agreement has been duly executed and
delivered by the Delaware Trustee under Delaware law and constitutes a legal,
valid and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement by the
Delaware Trustee do not conflict with or constitute a breach of the charter or
by-laws of the Delaware Trustee;
(d) no consent, approval or authorization of, or registration with
or notice to, any Federal or Delaware banking authority governing the trust
powers of the Delaware Trustee is required for the execution, delivery or
performance by the Delaware Trustee of this Agreement; and
(e) the Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the
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State of Delaware, and is a Person that satisfies for the Trust Section 3807(a)
of the Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Agreement shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities):
Hercules Trust III
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Department
Telecopier: (302) 984-4903
Telephone: (302) 428-3372
(c) if given to the Property Trustee, at the Property Trustee's
mailing address set forth below (or such other address as the Property Trustee
may give notice of to the Holders of the Securities):
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
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Telecopier: (215) 988-8372
Telephone: (215) 988-1329
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Vice-President and Treasurer, and
Corporate Secretary
Telecopier: (302) 594-5210
Telephone: (302) 594-6605
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws, except that the rights, limitations of rights,
obligations, duties and immunities of the Property Trustee shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States Federal income tax purposes as a grantor trust. The
provisions of this Agreement shall be interpreted to further this intention of
the parties.
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SECTION 14.4 Headings.
The Table of Contents, Cross-Reference Table and Headings contained
in this Agreement are inserted for convenience of reference only and do not
affect the interpretation of this Agreement or any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Agreement by the Sponsor and
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Agreement, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned have caused this Amended and
Restated Trust Agreement to be executed as of the day and year first above
written.
Israel J. Floyd, not in his individual
capacity but solely as Administrative
Trustee of the Trust
___________________________
Jan M. King, not in her individual capacity
but solely as Administrative Trustee of the
Trust
___________________________
Stuart C. Shears, not in his individual
capacity but solely as Administrative
Trustee of the Trust
___________________________
Chase Manhattan Bank Delaware, not in its
individual capacity but solely as Delaware
Trustee of the Trust
By:___________________________,
Name:
Title:
The Chase Manhattan Bank, not in its
individual capacity but solely as Property
Trustee of the Trust
By:___________________________,
Name:
Title:
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HERCULES INCORPORATED,
as Sponsor
By:___________________________
Name:
Title:
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ANNEX I
TERMS* OF
[_____%] [FLOATING RATE] PREFERRED SECURITIES
[_____%] [FLOATING RATE] COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Trust Agreement of
the Trust, dated as of _________, _____ (as amended from time to time, the
"Agreement"), the designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities and the Common Securities
(collectively, the "Securities") are set forth below (each capitalized term used
but not defined herein has the meaning set forth in the Agreement or, if not
defined in such Agreement, as defined in the Indenture):
1. Designation and Number.
(a) Preferred Securities. [Up to]_______ Preferred Securities of the
Trust, with an aggregate liquidation amount with respect to the assets of the
Trust of [up to] ________ dollars ($_________), and with a Liquidation Amount
with respect to the assets of the Trust of $ ___ per security, are hereby
designated for the purposes of identification only as "[___%] [Floating Rate]
Preferred Securities" (the "Preferred Securities"). The certificates evidencing
the Preferred Securities shall be substantially in the form of Exhibit A-1 to
the Agreement, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange or quotation system on which the Preferred Securities are
listed or quoted.
(b) Common Securities. [Up to]________ Common Securities of the Trust
with an aggregate Liquidation Amount with respect to the assets of the Trust of
[up to] ____________ dollars ($_________), and with a Liquidation Amount with
respect to the assets of the Trust of $____ per security, are hereby designated
for the purposes of identification only as "[____%] [Floating Rate] Common
Securities" (the "Common Securities"). The certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-2 to the Agreement,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions on each Security will be payable at a rate per annum
of [___%] [equal to LIBOR plus ___%] (the "Distribution Rate") of the
liquidation amount of $_____ per Security (the "Liquidation Amount"), such rate
being the rate of interest payable on the Debentures to be held by the Property
Trustee. [LIBOR and the amount payable in respect of -------- * SUBJECT TO
ADDITIONAL OR ALTERNATIVE PROVISIONS IF ANY OF THE SECURITIES ARE SUBJECT TO
CONVERSION OR EXCHANGE.
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a Distribution for a Distribution Period (as defined below) will be calculated
by the Calculation Agent in the same manner as LIBOR and the interest payable in
respect of each Interest Period for the Debentures, as set forth in the
Indenture.] Distributions in arrears for more than one ___________ period will
bear additional distributions thereon compounded ________ at the applicable
periodic Distribution Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes any such additional distributions
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds legally available therefor.
(b) Distributions on the Securities will be cumulative, will accumulate
from the most recent date to which Distributions have been paid or, if no
Distributions have been paid, from ____________ ,____, to but excluding the
related Distribution Date or Redemption Date (each defined below) and will be
payable ________ in arrears on _____________ of each year, commencing ________,
_____ (each, a "Distribution Date"), except as otherwise described below. The
amount of Distributions payable for any Distribution Period will be computed on
the basis of [a 360-day year consisting of twelve 30-day months] [the actual
number of days elapsed in such period and a year of 360 days]. "Distribution
Period" means the period from and including the immediately preceding
Distribution Date (or _______, ____ , in the case of the first Distribution
Period) to but excluding the applicable Distribution Date or Redemption Date. If
a Distribution Date is not a Business Day, then [such Distribution Date and the
first day of the Distribution Period commencing on such Distribution Date will
be the next succeeding Business Day, except if such Business Day is in the next
succeeding calendar month, such Distribution Date and the first day of such
Distribution Period will be the immediately preceding Business Day] [payments of
any Distributions payable on such date will be made on the next succeeding
Business Day, and no interest or other payment in respect of any such delay will
accumulate for the period to but excluding such Business Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest on the Debentures by extending the interest payment period
at any time and from time to time for a period not exceeding ______ consecutive
__________ periods (each __________ period as to which ___________ interest
payments have been deferred is referred to herein as an "Extension Period"),
provided that an Extension Period must end on an Interest Payment Date for the
Debentures and may not extend beyond the Stated Maturity Date or date of earlier
redemption for the Debentures. As a consequence of such deferral, Distributions
on the Securities will also be deferred during an Extension Period. Despite such
deferral, _________ Distributions will continue to accumulate with additional
interest thereon (to the extent permitted by applicable law but not at a rate
greater than the rate at which interest is then accruing on the Debentures) at
the Distribution Rate then in effect, compounded __________ during any Extension
Period. Prior to the termination of an Extension Period, the Debenture Issuer
may further defer payments of interest by further extending such Extension
Period; provided that an Extension Period, together with all such previous and
further extensions, may not exceed _____ consecutive ______
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periods, must end on an Interest Payment Date for the Debentures and may not
extend beyond the Stated Maturity Date or date of earlier redemption for the
Debentures. At the end of an Extension Period, all accumulated and unpaid
Distributions (but only to the extent payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds legally available therefor) will be payable to the Holders as they
appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period (or any extension thereof) and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements.
(c) Distributions on a Distribution Date will be payable to the Holders
thereof as they appear on the books and records of the Trust on the_______ day
of the month [immediately preceding] [in which] such Distribution Date [occurs].
The relevant record dates for the Common Securities shall be the same as the
record dates for the Preferred Securities. Distributions payable on any
Securities that are not punctually paid or duly provided for on any Distribution
Date, as a result of the Debenture Issuer having failed to make a payment under
the Debentures, will cease to be payable to the Holder on the relevant record
date, and such defaulted Distributions will instead be payable to the Person in
whose name such Securities are registered on the Special Record Date or other
specified date determined in accordance with the Indenture.
[(d) ______________ shall act as Calculation Agent to determine LIBOR
and calculate the Distribution Rate of, and the amount of Distributions payable
on, the Securities for each Distribution Period pursuant to the terms set forth
herein and in the Securities.]
[(d)] [(e)] In the event that there is any money or other property held
by or for the Trust that is not accounted for hereunder, such property shall be
distributed on a Pro Rata (as defined herein) basis among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust, the Trust shall be
liquidated by the Administrative Trustees as expeditiously as the Administrative
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
Holders of the Securities a Like Amount (as defined below) of the Debentures,
unless such distribution is determined by the Property Trustee not to be
practicable, in which event such Holders will be entitled to receive out of the
assets of the Trust legally available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the aggregate of the Liquidation Amount of $_______ per
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount is referred to herein as the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the Securities,
Securities having a Liquidation Amount equal to the principal amount of
Debentures to be paid in accordance with their terms and (ii) with respect to a
distribution of Debentures upon the dissolution of the Trust,
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Debentures having a principal amount equal to the Liquidation Amount of the
Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets legally available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in part, at stated
maturity or date of earlier redemption (either at the option of the Debenture
Issuer or pursuant to a Tax Event, as described below), the proceeds from such
repayment shall be simultaneously applied by the Property Trustee to redeem a
Like Amount of the Securities at a redemption price equal to (i) in the case of
the repayment of the Debentures at stated maturity, the Maturity Redemption
Price (as defined below), (ii) in the case of the optional redemption of the
Debentures upon the occurrence [prior to _________] and continuation of a Tax
Event, the Tax Event Redemption Price (as defined below) and (iii) in the case
of the optional redemption of the Debentures other than as a result of the
occurrence and continuance of a Tax Event, the Optional Redemption Price (as
defined below). The Maturity Redemption Price, the Tax Event Redemption Price
and the Optional Redemption Price are referred to collectively as the
"Redemption Price" and the date fixed for redemption of the Securities is
referred to herein as the "Redemption Date". Holders will be given not less than
30 nor more than 60 days' prior written notice of such redemption. Any
redemption of Securities shall be made, and the applicable Redemption Price
shall be payable, on the Redemption Date, and only to the extent that the Trust
has funds legally available for the payment thereof.
(b) (i) The "Maturity Redemption Price", shall mean a price equal to
100% of the Liquidation Amount of the Securities to be redeemed plus accumulated
and unpaid Distributions thereon, if any, to the date of redemption.
(ii) In the case of an optional redemption other than as a result of the
occurrence and continuance of a Tax Event, if fewer than all the outstanding
Securities are to be so redeemed, the Common Securities and the Preferred
Securities will be redeemed on a Pro Rata basis and the Preferred Securities to
be redeemed will be determined as described in Section 4(f)(ii) below. [Upon the
entry of an order for the dissolution of the Trust by a court of competent
jurisdiction, the Debentures thereafter will be subject to optional repayment,
in whole, but not in part, on or after ____________, _____.]
The Debenture Issuer shall have the right (subject to the conditions in
the Indenture) to redeem the Debentures in whole or in part at any time on or
after _________, ______, and, simultaneous with such redemption, to cause a Like
Amount of the Securities to be redeemed by the Trust at the Optional Redemption
Price on a Pro Rata basis. "Optional Redemption Price" shall mean a price equal
to [_____%] [the percentage of the Liquidation Amount of Securities to
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be redeemed plus accumulated and unpaid Distributions thereon, if any, to the
date of redemption if redeemed during the 12-month period beginning ________ of
the years indicated below:
Year Percentage]
------ ----------
(c) If at any time a Tax Event occurs [prior to ____________] and is
continuing, the Debenture Issuer shall have the right (subject to the conditions
set forth in the Indenture) to redeem the Debentures in whole, but not in part,
within the 90 days following the occurrence of such Tax Event (the "90 Day
Period"), and, simultaneous with such redemption, to cause a Like Amount of the
Securities to be redeemed by the Trust at the Tax Event Redemption Price on a
Pro Rata basis.
"Tax Event" shall occur upon receipt by the Administrative Trustees and the
Debenture Issuer of a reasoned Opinion of Counsel from counsel experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the date of the Agreement, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income received or
accrued on the Debentures, (ii) the interest payable by the Debenture Issuer on
the Debentures is not, or within 90 days of the date of such opinion will not
be, deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Tax Event Redemption Price" shall mean a price equal to [the greater of
(i)] 100% of the Liquidation Amount of Securities to be redeemed [or (ii) the
sum, as determined by a Quotation Agent (as defined in the Indenture), of the
present values of the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a _________ basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate
(as defined in the Indenture), plus, in each case, accumulated and unpaid
Distributions thereon, if any, to the date of such redemption].
(d) On and from the date fixed by the Administrative Trustees for any
distribution of Debentures and liquidation of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee), as the Holder of the
Preferred Securities, will receive a registered global
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certificate or certificates representing the Debentures to be delivered upon
such distribution and (iii) any certificates representing Securities not held by
the Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) will be deemed to represent beneficial interests in Debentures until
such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
(e) The Trust may not redeem fewer than all the outstanding Securities
unless all accumulated and unpaid Distributions have been paid on all Securities
for all Distribution periods terminating on or before the Redemption Date.
(f) The procedure with respect to redemptions or distributions of
Debentures shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by an Administrative Trustee on behalf of the
Trust by mail to each Holder of Securities to be redeemed or exchanged
not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will
be the date fixed for redemption of the Debentures. For purposes of the
calculation of the date of redemption or exchange and the dates on
which notices are given pursuant to this Section 4(f)(i), a Redemption/
Distribution Notice shall be deemed to be given on the day such notice
is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of Securities at the address of each such Holder appearing
in the books and records of the Trust. No defect in the Redemption/
Distribution Notice or in the mailing of either thereof with respect to
any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii)In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed on a Pro Rata basis from each Holder of Preferred Securities,
it being understood that, in respect of Preferred Securities registered
in the name of and held of record by the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to the
Clearing Agency and disbursed by such Clearing Agency in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice (which notice will be irrevocable), then
(A) with respect to Global Preferred Securities representing Preferred
Securities issued in book-entry form, by 12:00 noon, New York City
time, on the Redemption Date, provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures by 10:00
a.m., New York City time, on the stated maturity date or the date of
earlier redemption, as the case requires, the Property Trustee will
deposit irrevocably with the Clearing Agency or its nominee (or
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successor Clearing Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to such Preferred Securities
and will give the Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the relevant Participants, and
(B) with respect to Definitive Preferred Securities and Common
Securities, provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of such Holder appearing on the books and
records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, then immediately prior to the close of business
on the date of such deposit, or on the Redemption Date, as applicable,
Distributions will cease to accumulate on the Securities so called for
redemption and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on
such Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment of accumulated and unpaid Distributions on the
Redemption Date will be subject to the rights of Holders of Securities
on the close of business on a record date in respect of a Distribution
Date occurring on or prior to such Redemption Date.
(v) Neither the Administrative Trustees nor the Trust shall be
required to register or cause to be registered the transfer of (i) any
Securities beginning on the opening of business 15 days before the day
of mailing of a notice of redemption or any notice of selection of
Securities for redemption or (ii) any Securities selected for
redemption except the unredeemed portion of any Security being
redeemed. If a Redemption Date is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the next
succeeding Business Day, and no interest or other payment in respect of
any such delay will accumulate for the period to but excluding such
Business Day. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities will
continue to accumulate from the original redemption date to the actual
date of payment, in which case the actual payment date will be
considered the Redemption Date for purposes of calculating the
Redemption Price.
(vi) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust to (A) in respect of the
Preferred Securities, the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee) if the Global Preferred
Securities have been issued or, if Definitive Preferred Securities have
been issued, to the Holders thereof, and (B) in respect of the Common
Securities, to the Sponsor.
(vii) Subject to the foregoing and applicable law (including,
without limitation, United States Federal securities laws and banking
laws), the Sponsor or any of
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its subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law or the Agreement, the Holders of the Preferred Securities will
have no voting rights.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding with respect to any remedy available to the Debenture Trustee, or
exercise any trust or power conferred upon the Debenture Trustee, with respect
to the Debentures, (ii) waive any past default that is waivable under the
Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures, or (iv) consent
to any amendment, modification or termination of the Indenture or the Debentures
where such consent shall be required, without, in each case, obtaining (1) the
prior approval of the Holders of a Majority in Liquidation Amount of all
outstanding Preferred Securities; provided, however, that where a consent under
the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior approval of each Holder of the Preferred Securities and (2) an Opinion of
Counsel delivered to the Trust from tax counsel experienced in such matters to
the effect that the Trust will not be classified as an association taxable as
corporation for United States Federal income tax purposes on account of such
action.
Notwithstanding anything to the contrary contained herein, if an Event of
Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or, in the case of
redemption, on the Redemption Date), then a Holder of Preferred Securities may
directly institute a proceeding against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such a Direct Action, (i)
the rights of the Common Securities Holder will be subordinated to the rights of
Holders of Preferred Securities with respect to payments made or required to be
made by the Debenture Issuer in such Direct Action and (ii) the Debenture Issuer
shall remain obligated to pay the principal of, premium, if any, or interest on
such Debentures, and the Debenture Issuer shall be subrogated to the rights of
such Holder of Preferred Securities to the extent of any payment made by the
Debenture Issuer to such Holder in such Direct Action.
Any approval or direction of Holders of Preferred Securities may be given
at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Property Trustees will cause a notice of any meeting at which
Holders of Preferred Securities are entitled to vote to be mailed to each Holder
of record of Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such
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meeting on which such Holders are entitled to vote and (iii) instructions for
the delivery of proxies.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities, or to
distribute the Debentures, in accordance with the Agreement and these terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall
not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b) and 7 as otherwise required
by law or the Agreement, the Holders of the Common Securities will have no
voting rights.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding with respect to any remedy available to the Debenture Trustee, or
exercise any trust or power conferred upon the Debenture Trustee, with respect
to the Debentures, (ii) waive any past default that is waivable under the
Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures or (iv) consent
to any amendment, modification or termination of the Indenture or the Debentures
where such consent shall be required, without, in each case, obtaining (1) the
prior approval of the Holders of a Majority in Liquidation Amount of all
outstanding Common Securities; provided, however, that where a consent under the
Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior approval of the Common Securities Holder and (2) an Opinion of Counsel
delivered to the Trust from tax counsel experienced in such matters to the
effect that the Trust will not be classified as an association taxable as a
corporation for United States Federal income tax purposes on account of such
action.
Notwithstanding anything to the contrary contained herein, if an Event of
Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or, in the case of
redemption, on the Redemption Date), then a Holder of Common Securities may
institute a Direct Action against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures on or after the respective due date specified in the
Debentures. In connection with such a Direct Action, (i) the rights of the
Common Securities Holder will be subordinated to the rights of Holders of
Preferred Securities with respect to payments made or required to be made by the
Debenture Issuer in such Direct Action and (ii) the Debenture Issuer shall
remain obligated to pay the principal of, premium, if any, or interest on such
Debentures, and the Debenture Issuer shall be subrogated to the rights of such
Holder of
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Preferred Securities to the extent of any payment made by the Debenture Issuer
to such Holder in such Direct Action.
Any approval or direction of Holder(s) of Common Securities may be given at
a separate meeting of Holder(s) of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities or pursuant to written consent.
The Administrative Trustees will cause a notice of any meeting at which
Holder(s) of Common Securities are entitled to vote, to be mailed to each Holder
of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holder(s) are entitled to
vote and (iii) instructions for the delivery of proxies.
No vote or consent of the Holder(s) of the Common Securities will be
required for the Trust to redeem and cancel Common Securities, or to distribute
the Debentures, in accordance with the Agreement and these terms of the
Securities.
7. Amendments to Agreement.
In addition to the requirements set out in Section 12.1 of the Agreement,
the Agreement may be amended from time to time by the Sponsor and the Trustees
with (i) the consent of Holders of a Majority in Liquidation Amount of all
outstanding Securities, and (ii) receipt by the Trustees of an opinion of
counsel experienced in such matters to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States Federal
income tax purposes or the Trust's exemption from status as an Investment
Company under the Investment Company Act; provided, however, that, without the
consent of each Holder of the Securities, the Agreement may not be amended to
(i) change the Distribution Rate (or manner of calculation of the Distribution
Rate), amount, timing or currency or otherwise adversely affect the method of
any required payment, (ii) change the purposes of the Trust, (iii) authorize the
issuance of any additional beneficial interests in the Trust, (iv) change the
redemption provisions, (v) change the conditions precedent for the Sponsor to
elect to dissolve the Trust and distribute the Debentures to the Holders of the
Securities, (vi) change the Liquidation Distribution or other provisions
relating to the distribution of amounts payable upon the dissolution and
liquidation of the Trust, (vii) affect the limited liability of any Holder of
the Securities or (viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on or after the due
date therefor (or, in the case of redemption, on the Redemption Date).
8. Pro Rata.
A reference herein to any payment, distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate Liquidation Amount of the Securities held by such Holder in relation
to the aggregate Liquidation Amount of all Securities outstanding unless, in
relation to a payment, an Event of Default under the Agreement has occurred and
is continuing, in which case any funds legally available to make such payment
shall
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be paid first to each Holder of the Preferred Securities pro rata according to
the aggregate Liquidation Amount of Preferred Securities held by such Holder
relative to the aggregate Liquidation Amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate Liquidation Amount of Common Securities held by such Holder
relative to the aggregate Liquidation Amount of all Common Securities
outstanding.
9. Ranking.
The Preferred Securities rank pari passu with the Common Securities and
payment thereon shall be made Pro Rata with the Common Securities, except that,
if an Event of Default under the Agreement occurs and is continuing, no payments
in respect of Distributions on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Securities shall be made until the Holders
of the Preferred Securities shall be paid in full the Distributions, Redemption
Price, Liquidation Distribution and other payments to which they are entitled at
such time.
10. Acceptance of Securities Guarantees and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee, the Common Securities Guarantee and the Indenture, including the
subordination provisions therein.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar rights to
subscribe for any additional securities of the Trust.
12. Miscellaneous.
These terms constitute a part of the Agreement.
The Sponsor will provide a copy of the Agreement, the Preferred Securities
Guarantee or the Common Securities Guarantee (as may be appropriate) and the
Indenture (including any supplemental indenture) to a Holder without charge on
written request to the Sponsor at its principal place of business.
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EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY, INSERT: THIS
PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE MEANING OF THE
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING
AGENCY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE AGREEMENT AND NO TRANSFER OF
THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A
WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE
OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING
AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE CLEARING AGENCY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A1-1
<PAGE> 83
Certificate Number Number of Preferred
Securities
_________________ ____________________
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
HERCULES TRUST III
[____%] [Floating Rate] Preferred Securities
(liquidation amount $ ____ per Preferred Security)
HERCULES TRUST III, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that ______________
(the "Holder") is the registered owner of __________ securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [____%] [Floating Rate] Preferred Securities (liquidation amount
$ ____ per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Trust Agreement of the Trust dated as of _____________, ____, as the
same may be amended from time to time (the "Agreement"), including the
designation of the terms of the Preferred Securities as set forth in Annex I to
the Agreement. Capitalized terms used but not defined herein shall have the
meaning given them in the Agreement. The Sponsor will provide a copy of the
Agreement, the Preferred Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the Agreement
and is entitled to the benefits thereunder and to the benefits of the Preferred
Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
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IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ______________,_____.
HERCULES TRUST III
By: ___________________________________
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
as Property Trustee
By: __________________________________
Authorized Signatory
A1-3
<PAGE> 85
[FORM OF REVERSE OF SECURITY]
Distributions on each Preferred Security will be payable at a rate per
annum [of ____ %] [equal to LIBOR plus ____%] (the "Distribution Rate") of the
Liquidation Amount of $ ____ per Preferred Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. [LIBOR
and the amount payable in respect of a Distribution for a Distribution Period
will be calculated by the Calculation Agent in the same manner as LIBOR and the
interest payable in respect of each Interest Period for the Debentures, as set
forth in the Indenture.] Distributions in arrears for more than one ______
period will bear additional distributions thereon compounded ______ at the
applicable periodic Distribution Rate (to the extent permitted by applicable
law). The term "Distributions", as used herein, includes any such additional
distributions unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor.
Distributions on the Preferred Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from _____________, ____, to but excluding
the related Distribution Date (as defined herein) or any date fixed for
redemption (a "Redemption Date") and will be payable ______ in arrears on
_________, [___________, _________] and ________ of each year, commencing
______________, _____ (each, a "Distribution Date"), except as otherwise
described below and in the Agreement. The amount of Distributions payable for
any Distribution Period will be computed on the basis of [a 360-day year
consisting of twelve 30-day months] [the actual number of days elapsed in such
period and a year of 360 days]. "Distribution Period" means the period from and
including the immediately preceding Distribution Date (or _______, _____, in the
case of the first Distribution Period) to but excluding the applicable
Distribution Date or Redemption Date. If a Distribution Date is not a Business
Day, then (such Distribution Date and the first day of the Distribution Period
commencing on such Distribution Date will be the next succeeding Business Day,
except if such Business Day is in the next succeeding calendar month, such
Distribution Date and the first day of such Distribution Period will be the
immediately preceding Business Day] [payments of any Distribution payable on
such date will be made on the next succeeding Business Day, and no interest or
other payment in respect of such delay shall accumulate for the period to but
excluding such Business Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding ______
consecutive _______ periods (each, an "Extension Period"), provided that an
Extension Period must end on an interest payment date for the Debentures and may
not extend beyond the stated maturity date or redemption date for the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, ______ Distributions
A1-4
<PAGE> 86
will continue to accumulate with additional interest thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Distribution Rate then in
effect compounded ______ during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further defer
payments of interest by further extending such Extension Period; provided that
such Extension Period, together with all such previous and further extensions,
may not exceed ______ consecutive ______ periods, must end on an interest
payment date for the Debentures and may not extend beyond the Maturity Date or
Redemption Date of the Debentures. At the end of the Extension Period, all
accumulated and unpaid Distributions (but only to the extent payments are made
in respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor) will be payable to the Holders as
they appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period (or any extension period thereof) and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
foregoing requirements.
The Preferred Securities shall be redeemable [and convertible] [and
exchangeable] as provided in the Agreement.
A1-5
<PAGE> 87
ASSIGNMENT
---------------------
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
-----------------------
Signature:
--------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee**:
------------------------------------
- --------
*** Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
A1-6
<PAGE> 88
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE SUBJECT
TO THE TERMS OF THE AGREEMENT (AS DEFINED HEREIN)
Certificate Number Number of Common Securities
_________________________ ___________________________
Certificate Evidencing Common Securities
of
HERCULES TRUST III
[____ %] [Floating Rate] Common Securities
(liquidation amount $ ____ per Common Security)
HERCULES TRUST III, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Hercules
Incorporated (the "Holder") is the registered owner of __________ securities of
the Trust representing undivided beneficial interests in the assets of the Trust
designated the [____%] [Floating Rate] Common Securities (liquidation amount $
____ per Common Security) (the "Common Securities"). The Common Securities are
not transferable. The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Trust Agreement of the Trust dated as of ______________, ______, as the
same may be amended from time to time (the "Agreement"), including the
designation of the terms of the Common Securities as set forth in Annex I to the
Agreement. Capitalized terms used but not defined herein shall have the meaning
given them in the Agreement. The Sponsor will provide a copy of the Agreement,
the Common Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Agreement
and is entitled to the benefits thereunder and to the benefits of the Common
Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
A2-1
<PAGE> 89
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ___________________, _____.
HERCULES TRUST III
By:______________________________
Name:
Title: Administrative Trustee
A2-2
<PAGE> 90
[FORM OF REVERSE OF SECURITY]
Distributions on each Common Security will be payable at a rate per
annum [of ____%] [equal to LIBOR plus ____ %] (the "Distribution Rate") of the
Liquidation Amount of $ ____ per Common Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. [LIBOR
and the amount payable in respect of a Distribution for a Distribution Period
will be calculated by the Calculation Agent in the same manner as LIBOR and the
interest payable in respect of each Interest Period for the Debentures, as set
forth in the Indenture.] Distributions in arrears for more than one ____ period
will bear additional distributions thereon compounded ____ at the applicable
periodic Distribution Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes any such additional distributions
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds legally available therefor.
Distributions on the Common Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from __________, ____ , to but excluding the
related Distribution Date (as defined herein) or any date fixed for redemption
(a "Redemption Date"), and will be payable ______ in arrears on _________[,
____________, ___________] and ____________ of each year, commencing __________
, _____ (each, a "Distribution Date"), except as otherwise described below and
in the Agreement. The amount of Distributions payable for any Distribution
Period will be computed on the basis of [a 360-day year consisting of twelve
30-day months] [the actual number of days elapsed in such period and a year of
360 days]. "Distribution Period" means the period from and including the
immediately preceding Distribution Date (or ________, _____, in the case of the
first Distribution Period) to but excluding the applicable Distribution Date or
Redemption Date. If a Distribution Date is not a Business Day, then [such
Distribution Date and the first day of the Distribution Period commencing on
such Distribution Date will be the next succeeding Business Day, except if such
Business Day is in the next succeeding calendar month, such Distribution Date
and the first day of such Distribution Period will be the immediately preceding
Business Day] [payment s of any Distributions payable on such date will be made
on the next succeeding Business Day, and no interest or other payment in respect
of any such delay shall accumulate for the period to but excluding such Business
Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding ______
consecutive ______ periods (each, an "Extension Period"), provided that an
Extension Period must end on an interest payment date for the Debentures and may
not extend beyond the stated maturity date or redemption date for the
Debentures. As a consequence of
A2-3
<PAGE> 91
such deferral, Distributions will also be deferred. Despite such deferral,
______ Distributions will continue to accumulate with additional interest
thereon (to the extent permitted by applicable law but not at a rate greater
than the rate at which interest is then accruing on the Debentures) at the
Distribution Rate then in effect compounded ______ during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension Period, together with all such
previous and further extensions, may not exceed ______ consecutive ______
periods, must end on an interest payment date for the Debentures and may not
extend beyond the Maturity Date or Redemption Date of the Debentures. At the end
of the Extension Period, all accumulated and unpaid Distributions (but only to
the extent payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor) will be payable to the Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the foregoing requirements.
The Common Securities shall be redeemable [and convertible] [and
exchangeable] as provided in the Agreement.
A2-4
<PAGE> 92
EXHIBIT B
[Insert Specimen Debenture]
B-1
<PAGE> 93
EXHIBIT C
[Insert Purchase Agreement]
C-1
<PAGE> 1
- --------------------------------------------------------------------------------
AMENDED AND RESTATED TRUST AGREEMENT
HERCULES TRUST IV
Dated as of _______, ____
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions ............................................. 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ........................ 9
SECTION 2.2 Lists of Holders of Securities .......................... 9
SECTION 2.3 Reports by the Property Trustee ......................... 10
SECTION 2.4 Periodic Reports to Property Trustee .................... 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent ........ 10
SECTION 2.6 Events of Default; Waiver ............................... 10
SECTION 2.7 Event of Default; Notice ................................ 12
ARTICLE III
ORGANIZATION
SECTION 3.1 Name .................................................... 13
SECTION 3.2 Office .................................................. 13
SECTION 3.3 Purpose ................................................. 13
SECTION 3.4 Authority ............................................... 13
SECTION 3.5 Title to Property of the Trust .......................... 13
SECTION 3.6 Powers and Duties of the Administrative Trustees ........ 14
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees .... 16
SECTION 3.8 Powers and Duties of the Property Trustee ............... 18
SECTION 3.9 Certain Duties and Responsibilities
of the Property Trustee ................................. 20
SECTION 3.10 Certain Rights of Property Trustee ...................... 22
SECTION 3.11 Delaware Trustee ........................................ 24
SECTION 3.12 Execution of Documents .................................. 25
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities .............................................. 25
SECTION 3.14 Duration of Trust ....................................... 25
SECTION 3.15 Mergers ................................................. 25
i
<PAGE> 3
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities ................. 27
SECTION 4.2 Responsibilities of the Sponsor ......................... 28
SECTION 4.3 Right to Proceed ........................................ 28
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee ........... 29
SECTION 5.2 Delaware Trustee ........................................ 29
SECTION 5.3 Property Trustee; Eligibility ........................... 30
SECTION 5.4 Certain Qualifications of Administrative Trustees
and Delaware Trustee Generally .......................... 31
SECTION 5.5 Administrative Trustees ................................. 31
SECTION 5.6 Delaware Trustee ........................................ 31
SECTION 5.7 Appointment, Removal and Resignation of Trustees ........ 32
SECTION 5.8 Vacancies among Trustees ................................ 33
SECTION 5.9 Effect of Vacancies ..................................... 34
SECTION 5.10 Meetings ................................................ 34
SECTION 5.11 Delegation of Power ..................................... 34
SECTION 5.12 Merger, Conversion, Consolidation or
Succession to Business ................................ 35
SECTION 5.13 Compensation ............................................ 35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions ........................................... 35
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities ................. 36
SECTION 7.2 Execution and Authentication ............................ 36
SECTION 7.3 Form and Dating ......................................... 37
SECTION 7.4 Registrar and Paying Agent .............................. 38
SECTION 7.5 Paying Agent to Hold Money in Trust ..................... 39
SECTION 7.6 Replacement Securities .................................. 39
SECTION 7.7 Outstanding Preferred Securities ........................ 40
SECTION 7.8 Preferred Securities in Treasury ........................ 40
SECTION 7.9 Temporary Securities .................................... 40
ii
<PAGE> 4
SECTION 7.10 Cancellation ............................................ 41
SECTION 7.11 CUSIP Numbers ........................................... 41
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust .................................... 42
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities .................................. 43
SECTION 9.2 Transfer Procedures and Restrictions .................... 43
SECTION 9.3 Deemed Security Holders ................................. 46
SECTION 9.4 Book Entry Interests .................................... 47
SECTION 9.5 Notices to Clearing Agency .............................. 47
SECTION 9.6 Appointment of Successor Clearing Agency ................ 47
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1 Liability ............................................... 48
SECTION 10.2 Exculpation ............................................. 48
SECTION 10.3 Fiduciary Duty .......................................... 49
SECTION 10.4 Indemnification ......................................... 50
SECTION 10.5 Outside Businesses ...................................... 52
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year ............................................. 53
SECTION 11.2 Certain Accounting Matters .............................. 53
SECTION 11.3 Banking ................................................. 54
SECTION 11.4 Withholding ............................................. 54
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments .............................................. 54
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent ............................... 57
iii
<PAGE> 5
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee ...... 58
SECTION 13.2 Representations and Warranties of Delaware Trustee ...... 59
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices ................................................. 60
SECTION 14.2 Governing Law ........................................... 61
SECTION 14.3 Intention of the Parties ................................ 61
SECTION 14.4 Headings ................................................ 62
SECTION 14.5 Successors and Assigns .................................. 62
SECTION 14.6 Partial Enforceability .................................. 62
SECTION 14.7 Counterparts ............................................ 62
iv
<PAGE> 6
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Agreement
------------------- ---------
310(a).................................................. 5.3(a)
310(b).................................................. 5.3(c)
310(c).................................................. Inapplicable
311(a) and (b).......................................... 5.3(c)
311(c).................................................. Inapplicable
312(a).................................................. 2.2(a)
312(b).................................................. 2.2(b)
313..................................................... 2.3
314(a).................................................. 2.4
314(b).................................................. Inapplicable
314(c).................................................. 2.5
314(d).................................................. Inapplicable
314(e).................................................. 1.1, 2.5
314(f).................................................. Inapplicable
315(a).................................................. 3.9(b)
315(b).................................................. 2.7(a)
315(c).................................................. 3.9(a)
315(d).................................................. 3.9(b)
316(a) and (b) ......................................... 2.6 and Annex I
316(c).................................................. 3.6(f)
317(a).................................................. 3.8(c)
317(b).................................................. 3.8(i)
---------------
% This Cross-Reference Table does not constitute part of the Agreement and
shall not affect the interpretation of any of its terms or provisions.
i
<PAGE> 7
AMENDED AND RESTATED
TRUST AGREEMENT
OF
HERCULES TRUST IV
________, ____
AMENDED AND RESTATED TRUST AGREEMENT (the "Agreement") dated
and effective as of ________, ____, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (as defined herein) to be issued
pursuant to this Agreement;
WHEREAS, the Trustees and the Sponsor established Hercules
Trust IV (the "Trust"), a trust created under the Business Trust Act (as defined
herein) pursuant to a Trust Agreement dated as of September 14, 1998 (the
"Original Agreement"), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on September 14, 1998, for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Debenture Issuer (each as hereinafter defined) and
engaging in only those activities necessary, advisable or incidental thereto;
WHEREAS, the parties hereto desire to amend and restate each
and every term and provision of the Original Agreement; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust continue as a business trust under the Business Trust Act, that
the Original Agreement be amended and restated in its entirety as provided
herein and that this Agreement constitute the governing instrument of such
business trust, the Trustees declare that all assets contributed to the Trust
will be held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Agreement and, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
1
<PAGE> 8
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Agreement but not defined
in the preamble above or elsewhere herein have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Agreement has the same
meaning throughout;
(c) all references to "the Agreement" or "this Agreement" are
to this Agreement and each Annex and Exhibit hereto, as modified,
supplemented or amended from time to time;
(d) all references in this Agreement to Articles and Sections
and Annexes and Exhibits are to Articles and Sections of and Annexes
and Exhibits to this Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as defined
herein) has the same meaning when used in this Agreement unless
otherwise defined in this Agreement or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Administrative Trustee" has the meaning set forth in Section
5.1.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar [or Conversion
Agent].
"Agreement" means this Amended and Restated Trust Agreement,
dated as of __________.
"Authorized Officer" of a Person means any other Person that
is authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a Global
Preferred Security Certificate registered in the name of a Clearing Agency or
its nominee, ownership and transfers
2
<PAGE> 9
of which shall be maintained and made through book entries by a Clearing Agency
as described in Section 9.4.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banking institutions in The City of New York or Wilmington,
Delaware are authorized or required by law, regulation or executive order to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a global certificate and which
shall undertake to effect book-entry transfers and pledges of the Preferred
Securities.
"Closing Time" means the Closing Time as defined in the
Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if at any time after the
execution of this Agreement such Commission is not existing and performing the
duties now assigned to it under applicable federal securities laws, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in Section
7.1(a).
"Common Securities Guarantee" means the Common Securities
Guarantee Agreement, dated as of ________, _____ of the Sponsor in respect of
the Common Securities.
"Company Indemnified Person" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrative Trustee; or (d) any officer, employee or agent of the
Trust or its Affiliates; provided that the term "Company Indemnified Person"
shall not include any Fiduciary Indemnified Person.
"Conversion Agent" has the meaning specified in Section 7.4.
"Corporate Trust Office" means the office of the Property
Trustee for the conduct of corporate trust business at which matters related to
this Agreement shall, at any particular time, be principally administered, which
office at the date of execution of this Agreement is located at One Liberty
Place, 52nd Floor, 1650 Market Street, Philadelphia, Pennsylvania 19103.
3
<PAGE> 10
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Hercules Incorporated, a Delaware
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
"Debentures" means the _________ Junior Subordinated
Deferrable Interest Debentures due ________, ____ of the Debenture Issuer issued
pursuant to the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Default" means an event, act or condition that with notice of
lapse of time, or both, would constitute an Event of Default.
"Definitive Preferred Securities" has the meaning set forth in
Section 7.3(a).
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" means, with respect to the Securities, an
Event of Default (as defined in the Indenture) that has occurred and is
continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Preferred Security" has the meaning set forth in
Section 7.3(a).
"Holder" means a Person in whose name a Security or Successor
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
4
<PAGE> 11
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of ________, between
the Debenture Issuer and the Debenture Trustee relating to the Debenture
Issuer's junior subordinated debentures [as supplemented by the Supplemental
Indenture] and as [further] amended or supplemented from time to time.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(h).
"Like Amount" has the meaning set forth in Section 3 of Annex
I hereto.
"Liquidation Amount" has the meaning set forth in Section 2 of
Annex I hereto.
"List of Holders" has the meaning set forth in Section 2.2(a)
of Annex I hereto.
"Majority in Liquidation Amount" means, with respect to the
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the Chief Financial Officer,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary. Any Officers' Certificate delivered by
the Trust shall be signed by at least one Administrative Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
5
<PAGE> 12
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Option Closing Date" means the date of closing of any sale of
Additional Securities (as defined in the Purchase Agreement) or, if such term is
not defined in the Purchase Agreement, the date of closing of any sale of
securities to the underwriters named in such Purchase Agreement solely to cover
overallotments.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of the Sponsor, and who shall be reasonably acceptable to the
Property Trustee, provided, that the General Counsel or Assistant General
Counsel of the Sponsor shall be deemed to be reasonably acceptable to the
Trustee.
"Participants" has the meaning specified in Section 7.3(a).
"Paying Agent" has the meaning specified in Section 7.4.
"Payment Amount" has the meaning specified in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in Section
7.1(a).
"Preferred Securities Guarantee" means the Preferred
Securities Guarantee Agreement dated as of ________, of the Sponsor in respect
of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Property Trustee" has the meaning set forth in Section
5.3(a).
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
6
<PAGE> 13
"Purchase Agreement" means the Purchase Agreement for the
offering and sale of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Administrative Trustees or,
if there are only two Administrative Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4.
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property Trustee
with direct responsibility for the administration of this Agreement, including
any vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer or other officer of the Corporate Trust Office of the
Property Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Property Trustee to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Securities" or "Trust Securities" means the Common Securities
and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee
and the Preferred Securities Guarantee.
"Sponsor" means Hercules Incorporated, a Delaware corporation,
or any successor entity resulting from any merger, consolidation, amalgamation
or other business combination, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in
Section 5.7(b)(ii).
"Successor Entity" has the meaning set forth in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in
Section 3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section
3.15(b)(i)(B).
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
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"Tax Event" means the receipt by the Administrative Trustees
and the Debenture Issuer of a reasoned Opinion of Counsel from counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of this Agreement,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States Federal
income tax with respect to income received or accrued on the Debentures, (ii)
the interest payable by the Debenture Issuer on the Debentures is not, or within
90 days of the date of such opinion will not be, deductible by the Debenture
Issuer, in whole or in part, for United States Federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"10% in Liquidation Amount" means, with respect to the
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Agreement as a trustee, so long as such Person shall continue as Trustee of the
Trust in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in accordance
with the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Agreement in order for this
Agreement to be qualified under the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative Trustees on
behalf of the Trust shall provide the Property Trustee, unless the Property
Trustee is Registrar for the Securities, (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided that neither the
Sponsor nor the Administrative Trustees on behalf of the Trust shall be
obligated to provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the Property Trustee by
the Sponsor and the Administrative Trustees on behalf of the Trust, and (ii) at
any other time, within 30 days of receipt by the Trust of a written request for
a List of Holders as of a date no more than 14 days before such List of Holders
is given to the Property Trustee. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
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SECTION 2.3 Reports by the Property Trustee.
Within 60 days after September 1 of each year, commencing
September 1, ____, the Property Trustee shall provide to the Holders of the
Preferred Securities such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent provided for in this Agreement that relate to any
of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in Liquidation Amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in aggregate principal amount of the holders of the Debentures (a
"Super Majority") to be waived under the Indenture, the Event of
Default under the Agreement may only be waived by the vote of the
Holders of at least the proportion in aggregate Liquidation Amount of
the Preferred Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding.
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The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Agreement, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Agreement without any further act, vote, or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture (except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Agreement as provided below in this Section
2.6(b)), the Event of Default under the Agreement shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Agreement as provided below
in this Section 2.6(b), the Event of Default under the Agreement may
only be waived by the vote of the Holders of at least the proportion in
aggregate Liquidation Amount of the Common Securities that the relevant
Super Majority represents of the aggregate principal amount of the
Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and
such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Agreement and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this Section
2.6(b), upon such waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom shall be deemed
to have been cured for every purpose of this Agreement, but
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no such waiver shall extend to any subsequent or other default or Event of
Default with respect to the Common Securities or impair any right consequent
thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this Agreement.
The foregoing provisions of this Section 2.6(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of any default with respect to the Securities, transmit by mail,
first class postage prepaid, to the Holders of the Securities and to the
Sponsor, notices of all such defaults actually known to a Responsible Officer of
the Property Trustee, unless such defaults have been cured before the giving of
such notice (the term "defaults" for the purposes of this Section 2.7(a) being
hereby defined to be a Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for (i) a default in the payment
of principal of (or premium, if any) or interest on any of the Debentures or
(ii) any failure by the Company to deliver the required securities or other
rights upon a conversion or exchange election, the Property Trustee shall be
protected in withholding such notice if and so long as a committee of
Responsible Officers of the Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have actual
knowledge of any default except:
(i) a default under Sections 6.01(a) and 6.01(b) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of the Agreement shall
have actual knowledge.
(c) Within ten Business Days after the occurrence of any Event
of Default actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit notice of such Event of Default to the Holders
of the Preferred Securities, the Administrative Trustees and the Sponsor, unless
such Event of Default shall have been cured, waived or otherwise eliminated. The
Sponsor and the Administrative Trustees shall file annually with the Property
Trustee a certification as to whether or not they are in compliance with all the
conditions and covenants applicable to them under this Agreement.
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ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Hercules Trust IV" as such name may be
modified from time to time by the Administrative Trustees following written
notice to the Delaware Trustee, the Property Trustee and the Holders of
Securities. The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
Hercules Plaza, 1313 North Market Street, Wilmington, Delaware 19894-0001. On
ten Business Days' prior written notice to the Delaware Trustee, the Property
Trustee and the Holders of Securities, the Administrative Trustees may designate
another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities, (b) use the proceeds from the sale of the Securities
to acquire the Debentures in an aggregate principal amount equal to the
aggregate Liquidation Amount of such Securities, and (c) except as otherwise
limited herein, to engage in only those other activities necessary, advisable or
incidental thereto, including without limitation, those activities specified in
Sections 3.6, 3.8, 3.9, 3.10, 3.11 and/or 3.12.
SECTION 3.4 Authority.
Subject to the limitations provided in this Agreement and to
the specific duties of the Property Trustee, the Administrative Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust. An
action taken by one or more of the Administrative Trustees in accordance with
their powers shall constitute the act of and serve to bind the Trust and an
action taken by the Property Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Agreement.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Trustee Account or as otherwise provided in this
Agreement, legal title to all assets of the Trust shall be vested in the Trust.
The Holders shall not have legal title to any part of the assets of the Trust,
but shall have an undivided beneficial interest in the assets of the Trust.
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SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power,
duty and authority, and are hereby authorized and directed, to cause the Trust
to engage in the following activities:
(a) to execute, deliver, issue and sell the Preferred
Securities and the Common Securities in accordance with this Agreement;
provided, however, that (i) the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common Securities, (ii)
there shall be no interests in the Trust other than the Securities, and (iii)
the issuance of Securities shall be limited to a simultaneous issuance of both
Preferred Securities and Common Securities at the Closing Time and the Option
Closing Date, if any;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(ii) at the direction of the Sponsor, execute and file an
application, prepared by the Sponsor, to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing or quotation of the Preferred Securities;
(iii) execute and deliver letters, documents, or
instruments with DTC and other Clearing Agencies relating to the
Preferred Securities;
(iv) if required, execute and file with the Commission a
registration statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, as the
case may be; and
(v) execute and file any agreement, certificate or other
document which such Administrative Trustee deems necessary or
appropriate in connection with the issuance and sale of the Preferred
Securities;
(c) to acquire the Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of Common Securities;
(d) to cause the Trust to enter into such agreements and
arrangements as may be necessary or desirable in connection with the sale of
Preferred Securities to the underwriters
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thereof and the consummation thereof, and to take all action, and exercise all
discretion, as may be necessary or desirable in connection with the consummation
thereof;
(e) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Tax Event;
(f) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, [conversions, exchanges] and redemptions, and to
issue relevant notices to the Holders of Preferred Securities and Holders of
Common Securities as to such actions and applicable record dates;
(g) to take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of the Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Administrative Trustee;
(l) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, Registrar
for the Securities or to appoint a Paying Agent [or Conversion Agent] for the
Securities as provided in Section 7.4 except for such time as such power to
appoint a Paying Agent [ or Conversion Agent] is vested in the Property Trustee;
(n) to give prompt written notice to the Property Trustee and
to Holders of the Securities of any notice received from the Debenture Issuer of
its election to defer payments of interest on the Debentures by extending the
interest payment period under the Indenture;
(o) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which
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such existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for which
the Trust was created;
(p) to take any action (provided that such action does not
materially adversely affect the interests of Holders), not inconsistent with
this Agreement or with applicable law, that the Administrative Trustees
determine in their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.6, including, but not
limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
Federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the Debenture Issuer
for United States Federal income tax purposes;
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust; and
(r) to execute and deliver and record, file or register, as
applicable, all documents, certificates, agreements or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary, advisable or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Administrative Trustees
shall not take any action that is inconsistent with the purposes and functions
of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall
have none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust and the Trustees (including the Property Trustee
and the Delaware Trustee) shall not, and the Administrative Trustees shall cause
the Trust not to, engage in any activity other than as required or authorized by
this Agreement. In particular, the Trust shall not:
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(i) invest any proceeds received by the Trust from holding
the Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Agreement and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose
or execute any mortgage in respect of, or pledge, any Trust property;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(vii) so long as any Debentures are held by the Property
Trustee, the Trustees shall not (A) direct the time, method and place
of conducting any proceeding with respect to any remedy available to
the Debenture Trustee, or exercise any trust or power conferred upon
the Debenture Trustee with respect to the Debentures, (B) waive any
past default that is waivable under the Indenture, (C) exercise any
right to rescind or annul a declaration of acceleration of the maturity
of the principal of the Debentures, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where
such consent shall be required, without, in each case, obtaining (1)
the prior approval of the Holders of a Majority in Liquidation Amount
of all outstanding Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior approval of each Holder of
Securities and (2) an Opinion of Counsel delivered to the Trust from
tax counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for
United States Federal income tax purposes on account of such action;
(viii) revoke any action previously authorized or approved
by a vote of the Holders of Preferred Securities except by subsequent
vote of such Holders;
(ix) revoke any action previously authorized or approved by
a vote of the Holders of Common Securities except by subsequent vote of
such Holders; or
(x) undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States
Federal income tax purposes as a grantor trust.
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SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Trust and the Holders of the Securities. The right, title and interest of
the Property Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Property Trustee in accordance with Section
5.7. Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
[The Trust and the Property Trustee shall not convert any
Debentures held by either of them except pursuant to a notice of conversion
delivered to the Conversion Agent by a Holder of Securities.]
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of
and under the exclusive control of the Property Trustee on behalf of
the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Property Trustee,
deposit such funds into the Property Trustee Account and make payments
or cause the Paying Agent to make payments to the Holders of the
Preferred Securities and Holders of the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in
accordance with this Agreement. The Property Trustee Account shall be
an account that is maintained with a banking institution the rating on
whose long-term unsecured indebtedness is at least equal to the rating
assigned to the Preferred Securities by a "nationally recognized
statistical rating organization", as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred
Securities and the Common Securities to the extent the Debentures are
redeemed or mature;
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of
Securities upon the occurrence of certain events; and
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(iv) take such ministerial action as may be requested by
the Administrative Trustees in connection with the winding up of the
affairs of or liquidation of the Trust in accordance with this
Agreement and the preparation, execution and filing of a certificate of
cancellation or other appropriate certificates with the Secretary of
State of the State of Delaware and other appropriate governmental
authorities.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of this Agreement and the Securities.
(e) Subject to Section 3.9, the Property Trustee shall take
any Legal Action which arises out of or in connection with an Event of Default
of which a Responsible Officer of the Property Trustee has actual knowledge or
the Property Trustee's duties and obligations under this Agreement or the Trust
Indenture Act and, if the Property Trustee shall have failed to take such Legal
Action, the Holders of the Preferred Securities in at least an aggregate
Liquidation Amount equal to the specified percentage of Holders of Debentures
entitled to take such Legal Action may, to the fullest extent permitted by law,
take such Legal Action without first proceeding against the Property Trustee or
the Trust; provided however, that if an Event of Default has occurred and is
continuing and such event is attributable [either] to [(i)] the failure of the
Debenture Issuer to pay the principal of or premium, if any, or interest on the
Debentures on the date such principal, premium, if any, or interest is otherwise
payable (or in the case of redemption, on the redemption date) [or (ii) the
failure by the Sponsor to deliver the required securities upon an appropriate
conversion right election], then a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of or premium, if any, or interest on the Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder on or after the respective due date specified in the
Debentures [or for enforcement of such conversion rights, as the case may be] (a
"Direct Action"). Except as provided in the preceding sentence, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities and this Agreement; or
(ii) a successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 5.7 (a
"Successor Property Trustee").
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the
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Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of the Securities and this Agreement.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent,
the Property Trustee may authorize one or more Persons to act as additional
Paying Agents and to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
such additional Paying Agent may be removed by the Property Trustee at any time
the Property Trustee remains as Paying Agent and a successor Paying Agent or
additional Paying Agents may be (but are not required to be) appointed at any
time by the Property Trustee while the Property Trustee is acting as Paying
Agent.
(j) Subject to this Section 3.8, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.6.
Notwithstanding anything expressed or implied to the contrary
in this Agreement or any Annex or Exhibit hereto, the Property Trustee must
exercise the powers set forth in this Section 3.8 in a manner that is consistent
with the purposes and functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Event
of Default and after the curing or waiving of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Agreement and in the Securities and no implied covenants or
obligations shall be read into this Agreement against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, its own bad faith or its own willful misconduct,
except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
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(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Agreement and in the Securities and the Property
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement and in the Securities, and no implied covenants or
obligations shall be read into this Agreement against the
Property Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property 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 Property Trustee and conforming to
the requirements of this Agreement; provided, however, that in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Property Trustee, the Property Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Agreement (but shall not
be required to confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
Liquidation Amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Agreement;
(iv) no provision of this Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Agreement or indemnity reasonably satisfactory to the Property Trustee
against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safekeeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Agreement and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or sufficiency
of the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
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(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Sponsor. Money held by the Property Trustee need
not be segregated from other funds held by it except in relation to the
Property Trustee Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Agreement, nor shall the
Property Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this Agreement may be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Agreement, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees; and the Property
Trustee shall have the right at any time to seek instructions
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concerning the administration of this Agreement from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at
the request or direction of any Holder, unless such Holder shall have
provided to the Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs, expenses
(including reasonable attorneys' fees and expenses and the expenses of
the Property Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by
the Property Trustee in respect of the time, method or place of
conducting any proceeding for any remedy available to the Property
Trustee or the exercise of any trustor power conferred on the Property
Trustee under this Agreement;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents, custodians, nominees or attorneys and the
Property Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Agreement, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Securities
as would be entitled to direct the Property Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on, or acting in accordance with, such
instructions;
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(xi) except as otherwise expressly provided by this
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Agreement; and
(xii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement.
(b) No provision of this Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
(c) It is expressly understood and agreed by the parties hereto
that in fulfilling its obligations as Property Trustee hereunder on behalf of
the Trust, (i) any agreements or instruments executed or delivered by The Chase
Manhattan Bank are executed and delivered not in its individual capacity but
solely as Property Trustee under this Agreement in the exercise of the powers
and authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as representations, warranties, covenants, undertakings and
agreements by The Chase Manhattan Bank in its individual capacity but is made
and intended for the purpose of binding only the Trust, and (iii) under no
circumstances (except with respect to funds delivered to it relating to payments
in respect of the Securities) shall The Chase Manhattan Bank in its individual
capacity be personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Agreement except if such breach or failure is due to any negligence, bad faith
or willful misconduct of the Property Trustee.
SECTION 3.11 Delaware Trustee.
(a) Notwithstanding any other provision of this Agreement
other than Section 5.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrative Trustees or the Property Trustee
described in this Agreement (except as required under the Business Trust Act).
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
(b) It is expressly understood and agreed by the parties hereto
that in fulfilling its obligations as Delaware Trustee hereunder on behalf of
the Trust, (i) any agreements or instruments executed or delivered by Chase
Manhattan Bank Delaware are executed and
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delivered not in its individual capacity but solely as Delaware Trustee under
this Agreement in the exercise of the powers and authority conferred and vested
in it, (ii) each of the representations, undertakings and agreements herein made
on the part of the Trust is made and intended not as representations,
warranties, covenants, undertakings and agreements by Chase Manhattan Bank
Delaware in its individual capacity but is made and intended for the purpose of
binding only the Trust, and (iii) under no circumstances shall Chase Manhattan
Bank Delaware in its individual capacity be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or failure
of any obligation, representation, warranty, or covenant made or undertaken by
the Trust under this Agreement except if such breach or failure is due to any
negligence, bad faith or willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or
applicable law, each Administrative Trustee, individually, is authorized to
execute and deliver on behalf of the Trust any documents, agreements,
instruments or certificates that the Administrative Trustees have the power and
authority to execute and deliver pursuant to this Agreement.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Agreement and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Agreement or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions of
Article VIII hereof, shall have existence until [35 years from execution].
SECTION 3.15 Mergers.
(a) The Trust may not merge with or into, convert into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
Person, except as described in Section 3.15(b) and (c) and except with respect
to the distribution of all Debentures to Holders of Securities pursuant to
Section 8.1(a)(iii).
(b) The Trust may, at the request of the Sponsor, with the
consent of the Administrative Trustees or, if there are more than two, a
majority of the Administrative Trustees and without the consent of the Holders
of the Securities, the Delaware Trustee or the Property Trustee, merge with or
into, convert into, consolidate, amalgamate, or be replaced by, or convey,
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transfer or lease its properties and assets as an entirety or substantially as
an entirety to, a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Securities rank with
respect to Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the
Property Trustee with respect to the Debentures;
(iii) the Successor Securities (excluding any securities
substituted for any Common Securities) are listed, quoted or included
for trading, or any Successor Securities will be listed, quoted or
included for trading, upon notification of issuance, on any national
securities exchange or with any other organization on which the
Preferred Securities are then listed, quoted or included;
(iv) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) or the Debentures to be
downgraded or placed under surveillance or review by any nationally
recognized statistical rating organization that publishes a rating on
the Preferred Securities or the Debentures;
(v) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of the Securities
(including the holders of any Successor Securities) in any material
respect (other than with respect to any dilution of the interests of
such Holders or holders, as the case may be, in the Successor Entity);
(vi) the Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Sponsor
has received an opinion of a nationally recognized independent counsel
to the Trust experienced in such matters to the effect that:
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(A) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including the holders of any
Successor Securities) in any material respect (other than with
respect to any dilution of the interests of such Holders or
holders, as the case may be, in the Successor Entity); and
(B) following such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer
or lease, neither the Trust nor the Successor Entity, if any,
will be required to register as an Investment Company; and
(viii) the Sponsor or any permitted successor or assignee
owns all of the common securities of the Successor Entity and
guarantees the obligations of the Successor Entity under the Successor
Securities at least to the extent provided by the Preferred Securities
Guarantee and the Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the
Securities, merge with or into, convert into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, any other Person or permit any
other Person to merge with or into, consolidate, amalgamate, or replace it if
such merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity, if any, not to
be classified as a grantor trust for United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time and on any Option Closing Date, the
Sponsor will purchase all of the Common Securities then issued by the Trust, in
an amount equal to at least 3% of the total capital of the Trust, at the same
time as the Preferred Securities are issued and sold. The aggregate Liquidation
Amount of Common Securities at any time shall not be less than 3% of the total
capital of the Trust.
For so long as the Preferred Securities remain outstanding,
the Sponsor covenants (i) to maintain, directly or indirectly, 100% ownership of
the Common Securities; provided, however, that any permitted successor of the
Sponsor under the Indenture may succeed to the Sponsor's interest in the Common
Securities, (ii) to use its best efforts to cause the Trust (a) to remain a
business trust, except in connection with a distribution of Debentures to the
Holders of Securities in liquidation of the Trust, the [conversion, exchange or]
redemption of all the Securities, or certain mergers, consolidations or
amalgamations, each as permitted by this
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Agreement, and not to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by this Agreement, and (b) to otherwise continue to be
classified as a grantor trust for United States federal income tax purposes,
(iii) to use its best efforts to ensure that the Trust shall not be an
Investment Company for purposes of the Investment Company Act, (iv) to use its
best efforts to cause each Holder of Securities to be treated as owning an
undivided beneficial interest in the Debentures and (v) to take no action which
would cause the dissolution, liquidation or winding up of the Trust, except as
otherwise provided in this Agreement.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust, execute and file with
the Commission the registration statement on Form S-3 pertaining to the
Preferred Securities, including any amendments thereto and to register the
Preferred Securities Guarantee related thereto;
(b) to determine the jurisdictions in which to take
appropriate action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must be
taken by the Trust, and advise the Trust of actions it must take, and prepare
for execution and filing any documents to be executed and filed by the Trust, as
the Sponsor deems necessary or advisable in order to comply with the applicable
laws of any such jurisdictions;
(c) if deemed necessary or advisable by the Sponsor, to
prepare for filing by the Trust an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for listing or
quotation of the Preferred Securities;
(d) to prepare for filing by the Trust, execute and file with
the Commission a registration statement on Form 8-A, including any amendments
thereto, relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, as the case may be, including any amendments
thereto; and
(e) to negotiate the terms of, execute, enter into and deliver
the Purchase Agreement providing for the sale of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of
Preferred Securities to bring one or more Direct Actions under the circumstances
specified in this Agreement.
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ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities;
provided, however, that, the number of Trustees shall in no event be less than
two (2); provided further that (1) one Trustee shall be a Person meeting the
requirements of Section 5.2 (the "Delaware Trustee"); (2) there shall be at
least one Trustee who is an employee or officer of, or is affiliated with the
Sponsor (an "Administrative Trustee"); and (3) one Trustee shall be the Property
Trustee for so long as this Agreement is required to qualify as an indenture
under the Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements. Notwithstanding the above,
unless an Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust's property may at the
time be located, the Holders of a Majority in Liquidation Amount of the Common
Securities acting as a class at a meeting of the Holders of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more Persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of the Trust's property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of this Agreement. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
For so long as required by the Business Trust Act, the
Delaware Trustee shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law, provided, however, if the Property Trustee has its principal
place of business in the State of Delaware and
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otherwise meets the requirements of applicable law, then the Property Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the "Property
Trustee") which shall act as Property Trustee and which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an indenture trustee under the
Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by federal,
state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section 5.3(a)(ii),
the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common Securities (as
if it were the obligor referred to in Section 310(b) of the Trust Indenture Act)
shall in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Agreement for purposes of clause (i) of the first
provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
Telecopier: (215) 988-8372
Telephone: (215) 988-1329
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SECTION 5.4 Certain Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless
the Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
Israel J. Floyd
Jan M. King
Stuart C. Shears
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Telephone: (302) 594-5000
Telecopier: (302) 594-5210
(a) Except as expressly set forth in this Agreement and except
if a meeting of the Administrative Trustees is called with respect to any matter
over which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Unless otherwise determined by the Administrative
Trustees, and except as otherwise required by the Business Trust Act or
applicable law, any Administrative Trustee acting alone is authorized to execute
on behalf of the Trust any documents which the Administrative Trustees have the
power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Department
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Telecopier: (302) 984-4903
Telephone: (302) 428-3372
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be
continuing after the issuance of any Securities, by vote of the Holders
of a Majority in Liquidation Amount of the Common Securities voting as
a class at a meeting of the Holders of the Common Securities; and
(iii) if an Event of Default shall have occurred and be
continuing after the issuance of the Securities, with respect to the
Property Trustee or the Delaware Trustee, by vote of Holders of a
Majority in Liquidation Amount of the Preferred Securities voting as a
class at a meeting of Holders of the Preferred Securities (it being
understood that in no event will the Holders of the Preferred
Securities have the right to vote, appoint, remove or replace the
Administrative Trustees, which voting rights are exclusively vested in
the Holder of the Common Securities).
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Property Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Property Trustee and delivered to the Administrative Trustees
and the Sponsor; and
(c) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.7(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the removed Delaware Trustee, the Property Trustee (if the
removed Delaware Trustee is not also the Property Trustee), the Administrative
Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the other Trustees, the Sponsor and the Trust, which resignation shall take
effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
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(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor, the Delaware Trustee (if the resigning
Property Trustee is not also the Delaware Trustee) and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the Holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Property Trustee (if the resigning Delaware Trustee is not also the
Property Trustee), the Sponsor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities or, if an Event of
Default shall have occurred and be continuing after the issuance of the
Securities, the Holders of the Preferred Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Property Trustee,
as the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.7.
(f) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.7 within 60 days after delivery of an instrument of resignation or
removal, the Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrative
Trustees or, if there are more than two, a majority of the Administrative
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 5.7.
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SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust or to
terminate this Agreement. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 5.7, the Administrative
Trustees in office, regardless of their number, shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Agreement.
SECTION 5.10 Meetings.
If there is more than one Administrative Trustee, meetings of
the Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Agreement, any action of the Administrative Trustees
may be taken at a meeting by vote of a majority of the Administrative Trustees
present (whether in person or by telephone) and eligible to vote with respect to
such matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Administrative Trustees. In the event there is
only one Administrative Trustee, any and all action of such Administrative
Trustee shall be evidenced by a written consent of such Administrative Trustee.
SECTION 5.11 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6, including any registration statement or amendment
thereto filed with the Commission; and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to officers of the Trust the doing
of such things and the execution of such instruments either in the name of the
Trust or
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the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Agreement.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee or
any Administrative Trustee that is not a natural person, as the case may be, may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee, as the case may be, shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
the Property Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the case may be,
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, such successor shall
notify the Sponsor and the Trust promptly of its succession.
SECTION 5.13 Compensation.
The Sponsor agrees:
(a) to pay to the Property Trustee and the Delaware Trustee
from time to time such compensation as shall be agreed in writing between the
Company and the Property Trustee and the Delaware Trustee, respectively, for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust); and
(b) to reimburse the Property Trustee and the Delaware Trustee
upon their request for reasonable expenses, disbursements and advances incurred
or made by the Property Trustee or the Delaware Trustee, respectively, in
accordance with any provision of this Agreement (including the reasonable
compensation and the expenses and advances of its agents and counsel), except
any such expense or advance as may be attributable to their negligence, willful
misconduct or bad faith.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. Distributions shall be
made on the Preferred Securities and the Common Securities in accordance with
the respective terms and preferences set forth herein and in Annex I. If and to
the extent that the Debenture Issuer makes a payment of interest (including
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any compounded interest and additional interest), premium and/or principal on
the Debentures held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed, to the
extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall on behalf of the Trust
issue one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (the "Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities"). The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this
Agreement, the Securities so issued shall be validly issued, fully paid and
non-assessable.
(d) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Agreement, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Agreement.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by
an Administrative Trustee. In case any Administrative Trustee of the Trust who
shall have signed any of the Securities shall cease to be such Administrative
Trustee before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the Person who signed such
Securities had not ceased to be such Administrative Trustee; and any Securities
may be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Administrative Trustees of the Trust,
although at the date of the execution and delivery of this Agreement any such
person was not an Administrative Trustee.
(b) One Administrative Trustee shall sign the Preferred
Securities for the Trust by manual or facsimile signature.
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A Preferred Security shall not be valid until authenticated by
the manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Agreement. A Common Security shall be valid upon
execution by an Administrative Trustee without any act of the Property Trustee.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Preferred Securities for
original issue.
The aggregate number of Preferred Securities outstanding at
any time shall not exceed the number set forth in the terms in Annex I hereto
except as provided in Section 7.6.
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Preferred Securities. An authenticating
agent may authenticate Preferred Securities whenever the Property Trustee may do
so. Each reference in this Agreement to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee hereunder with respect to the Sponsor or an
Affiliate.
SECTION 7.3 Form and Dating.
The Preferred Securities and the Property Trustee's
certificate of authentication shall be substantially in the form of Exhibit A-1
and the Common Securities shall be substantially in the form of Exhibit A-2,
each of which is hereby incorporated in and expressly made a part of this
Agreement. The Securities may be in definitive or global form and may be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to an Administrative Trustee, as evidenced by the
execution thereof. The Securities may have letters, CUSIP or other numbers,
notations or other marks of identification or designation and such legends or
endorsements required by law, stock exchange or quotation system rule,
agreements to which the Trust is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Trust). An
Administrative Trustee, at the direction of the Sponsor, shall furnish any such
legend not contained in Exhibits A-1 or A-2 to the Property Trustee in writing.
Each Preferred Security shall be dated the date of its authentication. The terms
and provisions of the Securities set forth in Annex I and the forms of
Securities set forth in Exhibits A-1 and A-2 are part of the terms of this
Agreement and to the extent applicable, the Property Trustee and the Sponsor, by
their execution and delivery of this Agreement, expressly agree to such terms
and provisions and to be bound thereby.
The following four paragraphs shall apply only to any Global
Preferred Securities:
The Preferred Securities shall be issued in the form of one or
more permanent global Securities in definitive, fully registered form without
Distribution coupons with the appropriate global legends set forth in Exhibit
A-1 hereto (a "Global Preferred Security"), which shall be deposited on behalf
of the purchasers of the Preferred Securities represented thereby
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with the Property Trustee, as custodian for the Clearing Agency, and registered
in the name of the Clearing Agency or a nominee of the Clearing Agency, duly
executed by the Trust and authenticated by the Property Trustee as hereinafter
provided. The number of Preferred Securities represented by the Global Preferred
Security may from time to time be increased or decreased by adjustments made on
the records of the Property Trustee and the Clearing Agency or its nominee as
hereinafter provided. The Holder of a Global Preferred Security may grant
proxies and otherwise authorize any Person, including Participants and Persons
that may hold interests through Participants, to take any action which such
Holder is entitled to take under this Agreement or the Securities.
An Administrative Trustee shall execute and the Property
Trustee shall, in accordance with this Section 7.3, authenticate and make
available for delivery initially one or more Global Preferred Securities that
(i) shall be registered in the name of Cede & Co. or other nominee of such
Clearing Agency and (ii) shall be delivered by the Property Trustee to such
Clearing Agency or pursuant to such Clearing Agency's written instructions or
held by the Property Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Agreement with respect to any
Global Preferred Security held on their behalf by the Clearing Agency or by the
Property Trustee as the custodian of the Clearing Agency or under such Global
Preferred Security, and the Clearing Agency may be treated by the Trust, the
Property Trustee and any agent of the Trust or the Property Trustee as the
absolute owner of such Global Preferred Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Property Trustee or any agent of the Trust or the Property Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Clearing Agency or impair, as between the Clearing Agency and its
Participants, the operation of customary practices of such Clearing Agency
governing the exercise of the rights of a holder of a beneficial interest in any
Global Preferred Security.
Except as provided in Section 9.2, owners of beneficial
interests in a Global Preferred Security will not be entitled to receive
physical delivery of Preferred Securities in definitive form ("Definitive
Preferred Securities").
SECTION 7.4 Registrar and Paying Agent.
The Trust shall maintain in the Borough of Manhattan, The City
of New York, (i) an office or agency where Preferred Securities may be presented
for registration of transfer ("Registrar") and (ii) an office or agency where
Preferred Securities may be presented for payment ("Paying Agent") [ and (iii)
an office or agency where Preferred Securities may be presented for conversion
or exchange ("Conversion Agent")]. The Registrar shall keep a register of the
Preferred Securities and of their transfer. The Trust may appoint the Registrar
and the Paying Agent [and the Conversion Agent] and may appoint one or more
co-registrars and one or more additional paying agents [and conversion agents]
in such other locations as it shall determine. The term "Registrar" includes any
additional registrar and the term "Paying Agent"
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includes any additional paying agent [and the term "Conversion Agent" includes
any additional conversion agent]. The Trust may change any Registrar or Paying
Agent [or Conversion Agent] without prior notice to any Holder. The
Administrative Trustees shall notify the Property Trustee of the name and
address of any Agent not a party to this Agreement. If the Trust fails to
appoint or maintain another entity as Registrar or Paying Agent [or Conversion
Agent], the Property Trustee shall act as such, and as Paying Agent the Property
Trusteee shall have the rights set forth in Section 3.8(i). The Trust or any of
its Affiliates may act as Registrar or Paying Agent [or Conversion Agent]. The
Trust shall act as Registrar and Paying Agent [and Conversion Agent] for the
Common Securities.
Any Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' prior written notice to the Property Trustee, the Administrative
Trustees and the Sponsor. In the event that the Property Trustee shall no longer
be the Paying Agent, the Trust shall appoint a successor Paying Agent (which
shall be a bank or trust company acceptable to the Sponsor) to act as Paying
Agent.
The Trust initially appoints the Property Trustee as Registrar
and Paying Agent [and Conversion Agent] for the Preferred Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the
Property Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Property Trustee all money held by the Paying
Agent for the payment of liquidation amounts or Distributions on the Securities
and will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee. The
Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment over
to the Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the money. If the
Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If a Holder of a Security claims that a Security owned by it
has been lost, destroyed or wrongfully taken or if such Security is mutilated
and is surrendered to the Trust or, in the case of the Preferred Securities, to
the Property Trustee, an Administrative Trustee shall execute and the Property
Trustee shall authenticate and make available for delivery a replacement
Security if the Property Trustee's and the Trust's requirements, as the case may
be, are met. An indemnity bond must be provided by the Holder which, in the
judgment of the Property Trustee, is sufficient to protect the Trustees, the
Sponsor or any authenticating agent
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from any loss which any of them may suffer if a Security is replaced. The Trust
may charge such Holder for its expenses in replacing a Security.
Every replacement Security is an additional beneficial
interest in the Trust.
SECTION 7.7 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the
Preferred Securities authenticated by the Property Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Preferred Security is replaced, paid or purchased
pursuant to Section 7.6 hereof, it ceases to be outstanding unless the Property
Trustee receives proof satisfactory to it that the replaced, paid or purchased
Preferred Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with
the terms of this Agreement, they cease to be outstanding and Distributions
thereon shall cease to accumulate.
A Preferred Security does not cease to be outstanding because
the Trust, the Sponsor or an Affiliate of the Sponsor holds such Preferred
Security.
SECTION 7.8 Preferred Securities in Treasury.
In determining whether the Holders of the required amount of
Preferred Securities have concurred in any direction, waiver or consent,
Preferred Securities owned by the Trust, the Sponsor or an Affiliate of the
Sponsor, as the case may be, shall be disregarded and deemed not to be
outstanding, except that for the purposes of determining whether the Property
Trustee shall be fully protected in relying on any such direction, waiver or
consent, only Preferred Securities which a Responsible Officer of the Property
Trustee actually knows are so owned shall be so disregarded.
SECTION 7.9 Temporary Securities.
Until Definitive Securities are ready for delivery, the Administrative
Trustees may prepare and, in the case of the Preferred Securities, the Property
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations that
the Trust considers appropriate for temporary Securities. Without unreasonable
delay, the Administrative Trustees shall prepare and, in the case of the
Preferred Securities, the Property Trustee shall authenticate Definitive
Securities in exchange for temporary Securities.
SECTION 7.10 Cancellation.
The Trust at any time may deliver Preferred Securities to the
Property Trustee for cancellation. The Registrar and Paying Agent shall forward
to the Property Trustee any
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Preferred Securities surrendered to them for registration of transfer,
redemption, exchange [, conversion] or payment. The Property Trustee shall
promptly cancel all Preferred Securities surrendered for registration of
transfer, redemption, exchange, payment, replacement [, conversion] or
cancellation and shall dispose of cancelled Preferred Securities as the Trust
directs, provided that the Property Trustee shall not be obligated to destroy
Preferred Securities. The Trust may not issue new Preferred Securities to
replace Preferred Securities that it has paid or redeemed or that have been
delivered to the Property Trustee for cancellation or that any Holder has
exchanged [or converted].
SECTION 7.11 CUSIP Numbers.
The Trust, in issuing the Preferred Securities, may use
"CUSIP" numbers (if then generally in use), and, if so, the Property Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders
of Preferred Securities; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Preferred Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Preferred Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Sponsor will promptly notify the
Property Trustee of any change in the CUSIP numbers.
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ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall automatically dissolve upon the first to
occur of the following events:
(i) the bankruptcy of the Sponsor;
(ii) (A) the filing of a certificate of dissolution or
liquidation or its equivalent with respect to the Sponsor or (B) the
revocation of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) the distribution of a Like Amount of the Debentures
to the Holders of the Securities, provided that the Property Trustee
has received written notice from the Sponsor directing the Property
Trustee to dissolve the Trust (which direction is optional and, except
as otherwise expressly provided herein, within the discretion of the
Sponsor), and provided, further, that such dissolution is conditioned
on the receipt by the Administrative Trustees' receipt of an opinion of
an independent tax counsel experienced in such matters (a "No
Recognition Opinion") to the effect that the Holders of the Securities
will not recognize any gain or loss for United States Federal income
tax purposes as a result of the dissolution of the Trust and the
distribution of the Debentures;
(iv) the entry of a decree of judicial dissolution of the
Trust by a court of competent jurisdiction;
(v) the [conversion, exchange or] redemption of all of the
Securities and the payment to the Holders of any and all amounts
necessary therefor, all in accordance with the terms of the Securities;
or
(vi) the expiration of the term of the Trust provided in
Section 3.14.
(b) As soon as is practicable upon completion of winding up of
the Trust following the occurrence of an event referred to in Section 8.1(a),
the Administrative Trustees shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in accordance
with the Business Trust Act.
(c) The provisions of Section 3.9 and Article X shall survive
the termination of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Agreement and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Agreement shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) To the fullest extent permitted by law, the Sponsor may
not transfer the Common Securities except for any transfer (whether voluntarily
or by operation of law) permitted under Article 5 of the Indenture.
(d) The Administrative Trustees shall provide for the
registration of Securities and of the transfer of Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Administrative Trustees may require) in respect of any tax or other governmental
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Securities, the Administrative Trustees shall cause one or
more new Securities to be issued in the name of the designated transferee or
transferees. Every Security surrendered for registration of transfer or exchange
[or for conversion,] shall be accompanied by a written instrument of transfer in
form satisfactory to the Administrative Trustees duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Security surrendered for
registration of transfer [or for conversion,] shall be canceled by the
Administrative Trustees. A transferee of a Security shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Security. By acceptance of a Security, each transferee
shall be deemed to have agreed to be bound by this Agreement.
SECTION 9.2 Transfer Procedures and Restrictions
(a) Transfer and Exchange of Definitive Preferred Securities.
When Definitive Preferred Securities are presented to the Registrar:
(x) to register the transfer of such Definitive Preferred
Securities; or
(y) to exchange such Definitive Preferred Securities which
became mutilated, destroyed, defaced, stolen or lost, for an equal
liquidation amount of Definitive Preferred Securities,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Preferred Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a
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written instrument of transfer in form reasonably satisfactory to the Property
Trustee and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(b) Transfer of a Definitive Preferred Security for a
Beneficial Interest in a Global Preferred Security. Upon receipt by the Property
Trustee of a Definitive Preferred Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Property
Trustee, together with written instructions directing the Property Trustee to
make, or to direct the Clearing Agency to make, an adjustment on its books and
records with respect to the Global Preferred Security to reflect an increase in
the Liquidation Amount of the Preferred Securities represented by such Global
Preferred Security, then the Property Trustee shall cancel such Definitive
Preferred Security and cause, or direct the Clearing Agency to cause, the
aggregate Liquidation Amount of Preferred Securities represented by the
appropriate Global Preferred Security to be increased accordingly. If no Global
Preferred Securities are then outstanding, an Administrative Trustee shall
execute on behalf of the Trust and the Property Trustee shall authenticate, upon
written order of any Administrative Trustee, a Global Preferred Security
representing an appropriate Liquidation Amount of Preferred Securities.
(c) Transfer and Exchange of Global Preferred Securities.
Subject to Section 9.2(d), the transfer and exchange of Global Preferred
Securities or beneficial interests therein shall be effected through the
Clearing Agency in accordance with this Agreement and the procedures of the
Clearing Agency therefor.
(d) Transfer of a Beneficial Interest in a Global Preferred
Security for a Definitive Preferred Security.
(i) A Global Preferred Security deposited with the Clearing
Agency or with the Property Trustee as custodian for the Clearing
Agency pursuant to Section 7.3 shall be transferred to the beneficial
owners thereof in the form of Definitive Preferred Securities only if
such transfer complies with Section 9.2(c) and (1) the Clearing Agency
notifies the Trust that it is unwilling or unable to continue as
Clearing Agency for such Global Preferred Security or if at any time
such Clearing Agency ceases to be a "clearing agency" registered under
the Exchange Act and, in each case, a clearing agency is not appointed
by the Sponsor within 90 days of receipt of such notice or of becoming
aware of such condition, (2) a Default or an Event of Default has
occurred and is continuing or (3) the Trust at its sole discretion
elects to cause the issuance of Definitive Preferred Securities.
(ii) Any Global Preferred Security that is transferable to the
beneficial owners thereof in the form of Definitive Preferred
Securities pursuant to this Section 9.2(d) shall be surrendered by the
Clearing Agency to the Property Trustee located in the Borough of
Manhattan, The City of New York, to be so transferred, in whole or from
time to time in part, without charge, and the Property Trustee shall
authenticate and make available for delivery, upon such transfer of
each portion of such Global Preferred Security, an equal aggregate
Liquidation Amount of Securities of authorized denominations in the
form of
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Definitive Preferred Securities. Any portion of a Global Preferred
Security transferred pursuant to this Section shall be registered in
such names as the Clearing Agency shall direct.
In the event of the occurrence of any of the events specified in clause
(i) above, the Administrative Trustees will promptly make available to the
Property Trustee a reasonable supply of Definitive Preferred Securities in fully
registered form without Distribution coupons.
(e) Restrictions on Transfer and Exchange of Global Preferred
Securities. Notwithstanding any other provisions of this Agreement (other than
the provisions set forth in subsection (d) of this Section 9.2), a Global
Preferred Security may not be transferred as a whole except by the Clearing
Agency to a nominee of the Clearing Agency or another nominee of the Clearing
Agency or by the Clearing Agency or any such nominee to a successor Clearing
Agency or a nominee of such successor Clearing Agency.
(f) Cancellation or Adjustment of Global Preferred Security.
At such time as all beneficial interests in a Global Preferred Security have
either been exchanged for Definitive Preferred Securities to the extent
permitted by this Agreement or redeemed, repurchased [, converted or otherwise
exchanged] or canceled in accordance with the terms of this Agreement, such
Global Preferred Security shall be returned to the Clearing Agency for
cancellation or retained and canceled by the Property Trustee. At any time prior
to such cancellation, if any beneficial interest in a Global Preferred Security
is exchanged for Definitive Preferred Securities, Preferred Securities
represented by such Global Preferred Security shall be reduced and an adjustment
shall be made on the books and records of the Property Trustee (if it is then
the custodian for such Global Preferred Security) with respect to such Global
Preferred Security, by the Property Trustee or the Securities Custodian, to
reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Preferred Securities.
(i) To permit registrations of transfers and exchanges, an
Administrative Trustee shall execute and the Property Trustee shall
authenticate Definitive Preferred Securities and Global Preferred
Securities at the Registrar's request in accordance with the terms of
this Agreement.
(ii) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as the Trust
or the Sponsor may require) in respect of any tax or other governmental
charge that may be imposed in relation to it.
(iii) The Registrar shall not be required to register the
transfer of or exchange of (a) Preferred Securities during a period
beginning at the opening of business 15 days before the day of mailing
of a notice of redemption or any notice of selection of Preferred
Securities for redemption and ending at the close of business on the
day of such mailing; or (b) any Preferred Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Preferred Security being redeemed in part.
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(iv) All Preferred Securities issued upon any registration of
transfer or exchange pursuant to the terms of this Agreement shall
evidence the same security and shall be entitled to the same benefits
under this Agreement as the Preferred Securities surrendered upon such
registration of transfer or exchange.
(h) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Preferred Security, a
Participant in the Clearing Agency or other Person with respect to the
accuracy of the records of the Clearing Agency or its nominee or of any
Participant thereof, with respect to any ownership interest in the
Preferred Securities or with respect to the delivery to any
Participant, beneficial owner or other Person (other than the Clearing
Agency) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Preferred
Securities. All notices and communications to be given to the Holders
and all payments to be made to Holders under the Preferred Securities
shall be given or made only to or upon the order of the Holders (which
shall be the Clearing Agency or its nominee in the case of a Global
Preferred Security). The rights of beneficial owners in any Global
Preferred Security shall be exercised only through the Clearing Agency
subject to the applicable rules and procedures of the Clearing Agency.
The Property Trustee may conclusively rely and shall be fully protected
in relying upon information furnished by the Clearing Agency or any
agent thereof with respect to its Participants and any beneficial
owners.
(ii) The Property Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Agreement or under
applicable law with respect to any transfer of any interest in any
Preferred Security (including any transfers between or among Clearing
Agency Participants or beneficial owners in any Global Preferred
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Agreement, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
SECTION 9.3 Deemed Security Holders.
The Trust, the Trustees, the Registrar and the Paying Agent
may treat the Person in whose name any Security shall be registered on the books
and records of the Trust as the sole owner and Holder of such Security for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Security on the part of any Person other than such Holder,
regardless of any notice to the contrary.
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SECTION 9.4 Book Entry Interests.
Global Preferred Securities shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of the
Clearing Agency, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Preferred Securities, except as
provided in Section 9.2. Unless and until Definitive Preferred Securities have
been issued to the Preferred Security Beneficial Owners pursuant to Section 9.2:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Agreement (including the
payment of Distributions on the Global Preferred Securities and
receiving approvals, votes or consents hereunder) as the Holder of the
Preferred Securities and the sole holder of the Global Certificates and
shall have no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Agreement, the provisions of
this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or the
Participants, including receiving and transmitting payments of
Distributions on the Global Certificates to such Participants. DTC will
make book entry transfers among the Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required to be given by a Trustee under this Agreement, such
Trustee shall give all such notices and communications specified herein to be
given to the Holders of Global Preferred Securities to the Clearing Agency and
shall have no notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to the Preferred Securities.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Agreement, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Agreement or by law,
except that this provision shall not be deemed to modify Section 3.9(b).
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
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SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Agreement shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Person and any Indemnified Person; or
(ii) whenever this Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Agreement or by applicable law.
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SECTION 10.4 Indemnification.
(a)(i) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the Company Indemnified
Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Trust and except that no such indemnification
shall be made in respect of any claim, issue or matter as to which such
Company Indemnified Person shall have been adjudged to be liable to the
Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such Company
Indemnified Person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court shall
deem proper.
(iii) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a), or in
defense of any claim, issue or matter therein, he shall be indemnified,
to the full extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
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(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1)
by the Administrative Trustees by a majority vote of a Quorum
consisting of such Administrative Trustees who were not parties to such
action, suit or proceeding, (2) if such a Quorum is not obtainable, or,
even if obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion,
or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be
paid by the Sponsor in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
the Sponsor as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Sponsor if a determination
is reasonably and promptly made (1) by the Administrative Trustees by a
majority vote of a Quorum of disinterested Administrative Trustees, (2)
if such a Quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Administrative Trustees so directs, by independent
legal counsel in a written opinion or (3) by the Common Security Holder
of the Trust, that, based upon the facts known to the Administrative
Trustees, counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such Person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to
the Trust or its Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Preferred Security Holders of the Trust or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be
provided by a contract between the Sponsor and each Company Indemnified
Person who serves in such capacity at any time while this Section
10.4(a) is in effect. Any repeal or modification of this Section
10.4(a) shall not affect any rights or obligations then existing.
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(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any Person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a Person
who has ceased to be a Company Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
(b) The Sponsor agrees to indemnify the (i) Property Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based on the income
of such Fiduciary Indemnified Person) incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. With respect
to the Property Trustee, this provision shall not be deemed to modify Section
3.9(b) or the Trust Indenture Act. The obligation to indemnify as set forth in
this Section 10.4(b) shall survive the resignation or removal of the Property
Trustee or the Delaware Trustee and the satisfaction and discharge of this
Agreement.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be
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deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States Federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) The Administrative Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities, any annual United
States Federal income tax information statement, required by the Code,
containing such information with regard to the Securities held by each Holder as
is required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Administrative
Trustees shall endeavor to deliver all such information statements within 30
days after the end of each Fiscal Year of the Trust.
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(d) The Administrative Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an annual United
States Federal income tax return, on a Form 1041 or such other form required by
United States Federal income tax law, and any other annual income tax returns
required to be filed by the Administrative Trustees on behalf of the Trust with
any state or local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Administrative Trustees shall comply with
all withholding requirements under United States Federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such forms
or certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Administrative Trustees to assist them in determining the
extent of, and in fulfilling, the Trust's withholding obligations. The
Administrative Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and pay over
any amounts to any authority with respect to Distributions or allocations to any
Holder, the amount withheld shall be deemed to be a Distribution in the amount
of the withholding to the Holder. In the event of any claim of excess
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by the amount
of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Agreement or by any
applicable terms of the Securities, this Agreement may only be amended by a
written instrument approved and executed by:
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(i) the Sponsor and the Administrative Trustees (or, if there
are more than two Administrative Trustees, a majority of the
Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Agreement (including the terms
of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Agreement (including the terms
of the Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Agreement (including the terms
of the Securities) and that all conditions precedent to the
execution and delivery of such amendment have been satisfied;
and
(iii) to the extent the result of such amendment would:
(A) cause the Trust to fail to be classified for
purposes of United States Federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers
of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act.
(c) At such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of the Securities may be effected only
with such additional requirements as may be set forth in the
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terms of such Securities; provided, however, that, without the consent of each
Holder of the Securities, this Agreement may not be amended to (i) change the
Distribution rate (or manner of calculation of the Distribution rate), amount,
timing or currency or otherwise adversely affect the method of any required
payment, (ii) change the purposes of the Trust, (iii) authorize the issuance of
any additional beneficial interests in the Trust, (iv) change the [conversion,
exchange or] redemption provisions, (v) change the conditions precedent for the
Sponsor to elect to dissolve the Trust and distribute the Debentures to the
Holders of the Securities, (vi) change the Liquidation Distribution or other
provisions relating to the distribution of amounts payable upon the dissolution
and liquidation of the Trust, (vii) affect the limited liability of any Holder
of the Securities or (viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on or after the due
date therefor (or in the case of redemption, on the Redemption Date) [or for the
conversion or the exchange of Securities in accordance with their terms].
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under
Article V to increase or decrease the number of, and to appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 12.1(c), this Agreement may be
amended by the Sponsor and the Trustees without the consent of the Holders of
the Securities to:
(i) cure any ambiguity, correct or supplement any provision in
this Agreement that may be inconsistent with any other provision of
this Agreement or make any other provisions with respect to matters or
questions arising under this Agreement not inconsistent with any other
provisions of this Agreement;
(ii) modify, eliminate or add to any provisions of this
Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Securities are outstanding or to
ensure that the Trust will not be required to register as an Investment
Company under the Investment Company Act;
provided, however, that, in each case, such action shall not adversely affect in
any material respect the interests of the Holders of the Securities, and any
such amendments of this Agreement shall become effective when notice thereof is
given to the Holders of the Securities.
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SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Administrative Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Agreement, the
terms of the Securities or the rules of any stock exchange or quotation system
or market on which the Preferred Securities are listed or admitted for trading.
The Administrative Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in Liquidation Amount of the
Securities of such class. Such direction shall be given by delivering to the
Administrative Trustees one or more notices in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the general
or specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the security certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Agreement or the rules of any
stock exchange or quotation system or market on which the Preferred Securities
are listed or admitted for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in Liquidation
Amount that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in writing.
(c) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least seven
days and not more than 60 days before the date of such meeting. The
Administrative Trustees may specify that any written ballot submitted
to the Security Holders for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the
Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of eleven months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities
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executing it. Except as otherwise provided herein, all matters relating
to the giving, voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Administrative Trustees or by such other Person
that the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Agreement, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange or quotation system or market on which the
Preferred Securities are then listed or trading, otherwise provides,
the Administrative Trustees, in their sole discretion, shall establish
all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of Securities, waiver of
any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy or
any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Agreement, and
each Successor Property Trustee represents and warrants, as applicable, to the
Trust and the Sponsor at the time of the Successor Property Trustee's acceptance
of its appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or a State of the
United States, as the case may be, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
this Agreement;
(b) the execution, delivery and performance by the Property
Trustee of the Agreement have been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Agreement has been duly executed
and delivered by the Property Trustee under New York law and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights
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generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement
by the Property Trustee do not conflict with or constitute a breach of the
charter or by-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration
with or notice to, any federal or New York State banking authority is required
for the execution, delivery or performance by the Property Trustee of this
Agreement.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Agreement, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or the State of
Delaware, as the case may be, with corporate power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Agreement;
(b) the execution, delivery and performance by the Delaware
Trustee of this Agreement have been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Agreement has been duly
executed and delivered by the Delaware Trustee under Delaware law and
constitutes a legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement
by the Delaware Trustee do not conflict with or constitute a breach of the
charter or by-laws of the Delaware Trustee;
(d) no consent, approval or authorization of, or registration
with or notice to, any Federal or Delaware banking authority governing the trust
powers of the Delaware Trustee is required for the execution, delivery or
performance by the Delaware Trustee of this Agreement; and
(e) the Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the
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State of Delaware, and is a Person that satisfies for the Trust Section 3807(a)
of the Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrative
Trustees at the Trust's mailing address set forth below (or such other address
as the Trust may give notice of to the Holders of the Securities):
Hercules Trust IV
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Department
Telecopier: (302) 984-4903
Telephone: (302) 428-3372
(c) if given to the Property Trustee, at the Property
Trustee's mailing address set forth below (or such other address as the Property
Trustee may give notice of to the Holders of the Securities):
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
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Telecopier: (215) 988-8372
Telephone: (215) 988-1329
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Vice-President and Treasurer, and Corporate Secretary
Telecopier: (302) 594-5210
Telephone: (302) 594-6605
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Agreement and the rights of the parties hereunder shall
be governed by and construed in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws, except that the rights, limitations of
rights, obligations, duties and immunities of the Property Trustee shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States Federal income tax purposes as a grantor trust. The
provisions of this Agreement shall be interpreted to further this intention of
the parties.
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SECTION 14.4 Headings.
The Table of Contents, Cross-Reference Table and Headings
contained in this Agreement are inserted for convenience of reference only and
do not affect the interpretation of this Agreement or any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Agreement any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Agreement by the Sponsor and
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Agreement, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned have caused this Amended
and Restated Trust Agreement to be executed as of the day and year first above
written.
Israel J. Floyd, not in his individual capacity but
solely as Administrative Trustee of the Trust
____________________________
Jan M. King, not in her individual capacity but
solely as Administrative Trustee of the Trust
____________________________
Stuart C. Shears, not in his individual capacity but
solely as Administrative Trustee of the Trust
____________________________
Chase Manhattan Bank Delaware, not in its
individual capacity but solely as Delaware Trustee
of the Trust
By:___________________________,
Name:
Title:
The Chase Manhattan Bank, not in its individual
capacity but solely as Property Trustee of the Trust
By:___________________________,
Name:
Title:
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HERCULES INCORPORATED,
as Sponsor
By:_________________________
Name:
Title:
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ANNEX I
TERMS* OF
[_____%] [FLOATING RATE] PREFERRED SECURITIES
[_____%] [FLOATING RATE] COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Trust
Agreement of the Trust, dated as of _________, _____ (as amended from
time to time, the "Agreement"), the designation, rights, privileges,
restrictions, preferences and other terms and provisions of the
Preferred Securities and the Common Securities (collectively, the
"Securities") are set forth below (each capitalized term used but not
defined herein has the meaning set forth in the Agreement or, if not
defined in such Agreement, as defined in the Indenture):
1. Designation and Number.
(a) Preferred Securities. [Up to]_______ Preferred Securities
of the Trust, with an aggregate liquidation amount with respect to the assets of
the Trust of [up to] _______ dollars ($_________), and with a Liquidation Amount
with respect to the assets of the Trust of $ ___ per security, are hereby
designated for the purposes of identification only as "[___%] [Floating Rate]
Preferred Securities" (the "Preferred Securities"). The certificates evidencing
the Preferred Securities shall be substantially in the form of Exhibit A-1 to
the Agreement, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange or quotation system on which the Preferred Securities are
listed or quoted.
(b) Common Securities. [Up to]________ Common Securities of
the Trust with an aggregate Liquidation Amount with respect to the assets of the
Trust of [up to] _______ dollars ($_________), and with a Liquidation Amount
with respect to the assets of the Trust of $____ per security, are hereby
designated for the purposes of identification only as "[____%] [Floating Rate]
Common Securities" (the "Common Securities"). The certificates evidencing the
Common Securities shall be substantially in the form of Exhibit A-2 to the
Agreement, with such changes and additions thereto or deletions therefrom as may
be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions on each Security will be payable at a rate
per annum of [___%] [equal to LIBOR plus ___%] (the "Distribution Rate") of the
liquidation amount of $_____ per Security (the "Liquidation Amount"), such rate
being the rate of interest payable on the Debentures to be held by the Property
Trustee. [LIBOR and the amount payable in respect of
--------
* SUBJECT TO ADDITIONAL OR ALTERNATIVE PROVISIONS IF ANY OF THE SECURITIES ARE
SUBJECT TO CONVERSION OR EXCHANGE.
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a Distribution for a Distribution Period (as defined below) will be calculated
by the Calculation Agent in the same manner as LIBOR and the interest payable in
respect of each Interest Period for the Debentures, as set forth in the
Indenture.] Distributions in arrears for more than one ___________ period will
bear additional distributions thereon compounded ________ at the applicable
periodic Distribution Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes any such additional distributions
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds legally available therefor.
(b) Distributions on the Securities will be
cumulative, will accumulate from the most recent date to which Distributions
have been paid or, if no Distributions have been paid, from ____________ ,____,
to but excluding the related Distribution Date or Redemption Date (each defined
below) and will be payable ________ in arrears on _____________ of each year,
commencing ________, _____ (each, a "Distribution Date"), except as otherwise
described below. The amount of Distributions payable for any Distribution Period
will be computed on the basis of [a 360-day year consisting of twelve 30-day
months] [the actual number of days elapsed in such period and a year of 360
days]. "Distribution Period" means the period from and including the immediately
preceding Distribution Date (or _______, ____ , in the case of the first
Distribution Period) to but excluding the applicable Distribution Date or
Redemption Date. If a Distribution Date is not a Business Day, then [such
Distribution Date and the first day of the Distribution Period commencing on
such Distribution Date will be the next succeeding Business Day, except if such
Business Day is in the next succeeding calendar month, such Distribution Date
and the first day of such Distribution Period will be the immediately preceding
Business Day] [payments of any Distributions payable on such date will be made
on the next succeeding Business Day, and no interest or other payment in respect
of any such delay will accumulate for the period to but excluding such Business
Day].
As long as no Event of Default has occurred and is continuing
under the Indenture, the Debenture Issuer has the right under the Indenture to
defer payments of interest on the Debentures by extending the interest payment
period at any time and from time to time for a period not exceeding ______
consecutive __________ periods (each __________ period as to which ___________
interest payments have been deferred is referred to herein as an "Extension
Period"), provided that an Extension Period must end on an Interest Payment Date
for the Debentures and may not extend beyond the Stated Maturity Date or date of
earlier redemption for the Debentures. As a consequence of such deferral,
Distributions on the Securities will also be deferred during an Extension
Period. Despite such deferral, _________ Distributions will continue to
accumulate with additional interest thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then
accruing on the Debentures) at the Distribution Rate then in effect, compounded
__________ during any Extension Period. Prior to the termination of an Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that an Extension Period, together
with all such previous and further extensions, may not exceed _____ consecutive
______
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periods, must end on an Interest Payment Date for the Debentures and may not
extend beyond the Stated Maturity Date or date of earlier redemption for the
Debentures. At the end of an Extension Period, all accumulated and unpaid
Distributions (but only to the extent payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds legally available therefor) will be payable to the Holders as they
appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period (or any extension thereof) and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements.
(c) Distributions on a Distribution Date will be
payable to the Holders thereof as they appear on the books and records of the
Trust on the_______ day of the month [immediately preceding] [in which] such
Distribution Date [occurs]. The relevant record dates for the Common Securities
shall be the same as the record dates for the Preferred Securities.
Distributions payable on any Securities that are not punctually paid or duly
provided for on any Distribution Date, as a result of the Debenture Issuer
having failed to make a payment under the Debentures, will cease to be payable
to the Holder on the relevant record date, and such defaulted Distributions will
instead be payable to the Person in whose name such Securities are registered on
the Special Record Date or other specified date determined in accordance with
the Indenture.
[(d) ______________ shall act as Calculation Agent to
determine LIBOR and calculate the Distribution Rate of, and the amount of
Distributions payable on, the Securities for each Distribution Period pursuant
to the terms set forth herein and in the Securities.]
[(d)] [(e)] In the event that there is any money or other property held
by or for the Trust that is not accounted for hereunder, such property shall be
distributed on a Pro Rata (as defined herein) basis among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust, the Trust shall be
liquidated by the Administrative Trustees as expeditiously as the Administrative
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
Holders of the Securities a Like Amount (as defined below) of the Debentures,
unless such distribution is determined by the Property Trustee not to be
practicable, in which event such Holders will be entitled to receive out of the
assets of the Trust legally available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the aggregate of the Liquidation Amount of $_______ per
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount is referred to herein as the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the Securities,
Securities having a Liquidation Amount equal to the principal amount of
Debentures to be paid in accordance with their terms and (ii) with respect to a
distribution of Debentures upon the dissolution of the Trust,
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Debentures having a principal amount equal to the Liquidation Amount of the
Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets legally available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in
whole or in part, at stated maturity or date of earlier redemption (either at
the option of the Debenture Issuer or pursuant to a Tax Event, as described
below), the proceeds from such repayment shall be simultaneously applied by the
Property Trustee to redeem a Like Amount of the Securities at a redemption price
equal to (i) in the case of the repayment of the Debentures at stated maturity,
the Maturity Redemption Price (as defined below), (ii) in the case of the
optional redemption of the Debentures upon the occurrence [prior to _________]
and continuation of a Tax Event, the Tax Event Redemption Price (as defined
below) and (iii) in the case of the optional redemption of the Debentures other
than as a result of the occurrence and continuance of a Tax Event, the Optional
Redemption Price (as defined below). The Maturity Redemption Price, the Tax
Event Redemption Price and the Optional Redemption Price are referred to
collectively as the "Redemption Price" and the date fixed for redemption of the
Securities is referred to herein as the "Redemption Date". Holders will be given
not less than 30 nor more than 60 days' prior written notice of such redemption.
Any redemption of Securities shall be made, and the applicable Redemption Price
shall be payable, on the Redemption Date, and only to the extent that the Trust
has funds legally available for the payment thereof.
(b) (i) The "Maturity Redemption Price", shall
mean a price equal to 100% of the Liquidation Amount of the Securities to be
redeemed plus accumulated and unpaid Distributions thereon, if any, to the date
of redemption.
(ii) In the case of an optional redemption other than as a result of
the occurrence and continuance of a Tax Event, if fewer than all the outstanding
Securities are to be so redeemed, the Common Securities and the Preferred
Securities will be redeemed on a Pro Rata basis and the Preferred Securities to
be redeemed will be determined as described in Section 4(f)(ii) below. [Upon the
entry of an order for the dissolution of the Trust by a court of competent
jurisdiction, the Debentures thereafter will be subject to optional repayment,
in whole, but not in part, on or after ____________, _____.]
The Debenture Issuer shall have the right (subject to the conditions in
the Indenture) to redeem the Debentures in whole or in part at any time on or
after _________, ______, and, simultaneous with such redemption, to cause a Like
Amount of the Securities to be redeemed by the Trust at the Optional Redemption
Price on a Pro Rata basis. "Optional Redemption Price" shall mean a price equal
to [_____%] [the percentage of the Liquidation Amount of Securities to
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be redeemed plus accumulated and unpaid Distributions thereon, if any, to the
date of redemption if redeemed during the 12-month period beginning ________ of
the years indicated below:
Year Percentage]
------ ----------
(c) If at any time a Tax Event occurs [prior to
____________] and is continuing, the Debenture Issuer shall have the right
(subject to the conditions set forth in the Indenture) to redeem the Debentures
in whole, but not in part, within the 90 days following the occurrence of such
Tax Event (the "90 Day Period"), and, simultaneous with such redemption, to
cause a Like Amount of the Securities to be redeemed by the Trust at the Tax
Event Redemption Price on a Pro Rata basis.
"Tax Event" shall occur upon receipt by the Administrative Trustees and
the Debenture Issuer of a reasoned Opinion of Counsel from counsel experienced
in such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the date of the Agreement, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income received or
accrued on the Debentures, (ii) the interest payable by the Debenture Issuer on
the Debentures is not, or within 90 days of the date of such opinion will not
be, deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Tax Event Redemption Price" shall mean a price equal to [the greater
of (i)] 100% of the Liquidation Amount of Securities to be redeemed [or (ii) the
sum, as determined by a Quotation Agent (as defined in the Indenture), of the
present values of the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a _________ basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate
(as defined in the Indenture), plus, in each case, accumulated and unpaid
Distributions thereon, if any, to the date of such redemption].
(d) On and from the date fixed by the Administrative Trustees
for any distribution of Debentures and liquidation of the Trust: (i) the
Securities will no longer be deemed to be outstanding, (ii) the Clearing Agency
or its nominee (or any successor Clearing Agency or its nominee), as the Holder
of the Preferred Securities, will receive a registered global
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certificate or certificates representing the Debentures to be delivered upon
such distribution and (iii) any certificates representing Securities not held by
the Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) will be deemed to represent beneficial interests in Debentures until
such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
(e) The Trust may not redeem fewer than all the
outstanding Securities unless all accumulated and unpaid Distributions have been
paid on all Securities for all Distribution periods terminating on or before the
Redemption Date.
(f) The procedure with respect to redemptions or distributions
of Debentures shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by an Administrative Trustee on behalf of the
Trust by mail to each Holder of Securities to be redeemed or exchanged
not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will
be the date fixed for redemption of the Debentures. For purposes of the
calculation of the date of redemption or exchange and the dates on
which notices are given pursuant to this Section 4(f)(i), a Redemption/
Distribution Notice shall be deemed to be given on the day such notice
is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of Securities at the address of each such Holder appearing
in the books and records of the Trust. No defect in the Redemption/
Distribution Notice or in the mailing of either thereof with respect to
any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii)In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed on a Pro Rata basis from each Holder of Preferred Securities,
it being understood that, in respect of Preferred Securities registered
in the name of and held of record by the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to the
Clearing Agency and disbursed by such Clearing Agency in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice (which notice will be irrevocable), then
(A) with respect to Global Preferred Securities representing Preferred
Securities issued in book-entry form, by 12:00 noon, New York City
time, on the Redemption Date, provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures by 10:00
a.m., New York City time, on the stated maturity date or the date of
earlier redemption, as the case requires, the Property Trustee will
deposit irrevocably with the Clearing Agency or its nominee (or
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successor Clearing Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to such Preferred Securities
and will give the Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the relevant Participants, and
(B) with respect to Definitive Preferred Securities and Common
Securities, provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of such Holder appearing on the books and
records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, then immediately prior to the close of business
on the date of such deposit, or on the Redemption Date, as applicable,
Distributions will cease to accumulate on the Securities so called for
redemption and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on
such Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment of accumulated and unpaid Distributions on the
Redemption Date will be subject to the rights of Holders of Securities
on the close of business on a record date in respect of a Distribution
Date occurring on or prior to such Redemption Date.
(v) Neither the Administrative Trustees nor the Trust shall be
required to register or cause to be registered the transfer of (i) any
Securities beginning on the opening of business 15 days before the day
of mailing of a notice of redemption or any notice of selection of
Securities for redemption or (ii) any Securities selected for
redemption except the unredeemed portion of any Security being
redeemed. If a Redemption Date is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the next
succeeding Business Day, and no interest or other payment in respect of
any such delay will accumulate for the period to but excluding such
Business Day. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities will
continue to accumulate from the original redemption date to the actual
date of payment, in which case the actual payment date will be
considered the Redemption Date for purposes of calculating the
Redemption Price.
(vi) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust to (A) in respect of the
Preferred Securities, the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee) if the Global Preferred
Securities have been issued or, if Definitive Preferred Securities have
been issued, to the Holders thereof, and (B) in respect of the Common
Securities, to the Sponsor.
(vii) Subject to the foregoing and applicable law (including,
without limitation, United States Federal securities laws and banking
laws), the Sponsor or any of
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its subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7
and as otherwise required by law or the Agreement, the Holders of the Preferred
Securities will have no voting rights.
(b) So long as any Debentures are held by the
Property Trustee, the Trustees shall not (i) direct the time, method and place
of conducting any proceeding with respect to any remedy available to the
Debenture Trustee, or exercise any trust or power conferred upon the Debenture
Trustee, with respect to the Debentures, (ii) waive any past default that is
waivable under the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures,
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures where such consent shall be required, without, in each case,
obtaining (1) the prior approval of the Holders of a Majority in Liquidation
Amount of all outstanding Preferred Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior approval of each Holder of the Preferred Securities
and (2) an Opinion of Counsel delivered to the Trust from tax counsel
experienced in such matters to the effect that the Trust will not be classified
as an association taxable as corporation for United States Federal income tax
purposes on account of such action.
Notwithstanding anything to the contrary contained herein, if an Event
of Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or, in the case of
redemption, on the Redemption Date), then a Holder of Preferred Securities may
directly institute a proceeding against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such a Direct Action, (i)
the rights of the Common Securities Holder will be subordinated to the rights of
Holders of Preferred Securities with respect to payments made or required to be
made by the Debenture Issuer in such Direct Action and (ii) the Debenture Issuer
shall remain obligated to pay the principal of, premium, if any, or interest on
such Debentures, and the Debenture Issuer shall be subrogated to the rights of
such Holder of Preferred Securities to the extent of any payment made by the
Debenture Issuer to such Holder in such Direct Action.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Property Trustees will cause a notice of any meeting at which
Holders of Preferred Securities are entitled to vote to be mailed to each Holder
of record of Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such
I-8
<PAGE> 79
meeting on which such Holders are entitled to vote and (iii) instructions for
the delivery of proxies.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities, or to
distribute the Debentures, in accordance with the Agreement and these terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b) and 7
as otherwise required by law or the Agreement, the Holders of the Common
Securities will have no voting rights.
(b) So long as any Debentures are held by the
Property Trustee, the Trustees shall not (i) direct the time, method and place
of conducting any proceeding with respect to any remedy available to the
Debenture Trustee, or exercise any trust or power conferred upon the Debenture
Trustee, with respect to the Debentures, (ii) waive any past default that is
waivable under the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures where such consent shall be required, without, in each case,
obtaining (1) the prior approval of the Holders of a Majority in Liquidation
Amount of all outstanding Common Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior approval of the Common Securities Holder and (2) an
Opinion of Counsel delivered to the Trust from tax counsel experienced in such
matters to the effect that the Trust will not be classified as an association
taxable as a corporation for United States Federal income tax purposes on
account of such action.
Notwithstanding anything to the contrary contained herein, if an Event
of Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or, in the case of
redemption, on the Redemption Date), then a Holder of Common Securities may
institute a Direct Action against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures on or after the respective due date specified in the
Debentures. In connection with such a Direct Action, (i) the rights of the
Common Securities Holder will be subordinated to the rights of Holders of
Preferred Securities with respect to payments made or required to be made by the
Debenture Issuer in such Direct Action and (ii) the Debenture Issuer shall
remain obligated to pay the principal of, premium, if any, or interest on such
Debentures, and the Debenture Issuer shall be subrogated to the rights of such
Holder of
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<PAGE> 80
Preferred Securities to the extent of any payment made by the Debenture Issuer
to such Holder in such Direct Action.
Any approval or direction of Holder(s) of Common Securities may be
given at a separate meeting of Holder(s) of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Administrative Trustees will cause a notice of any meeting at which
Holder(s) of Common Securities are entitled to vote, to be mailed to each Holder
of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holder(s) are entitled to
vote and (iii) instructions for the delivery of proxies.
No vote or consent of the Holder(s) of the Common Securities will be
required for the Trust to redeem and cancel Common Securities, or to distribute
the Debentures, in accordance with the Agreement and these terms of the
Securities.
7. Amendments to Agreement.
In addition to the requirements set out in Section 12.1 of the
Agreement, the Agreement may be amended from time to time by the Sponsor and the
Trustees with (i) the consent of Holders of a Majority in Liquidation Amount of
all outstanding Securities, and (ii) receipt by the Trustees of an opinion of
counsel experienced in such matters to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States Federal
income tax purposes or the Trust's exemption from status as an Investment
Company under the Investment Company Act; provided, however, that, without the
consent of each Holder of the Securities, the Agreement may not be amended to
(i) change the Distribution Rate (or manner of calculation of the Distribution
Rate), amount, timing or currency or otherwise adversely affect the method of
any required payment, (ii) change the purposes of the Trust, (iii) authorize the
issuance of any additional beneficial interests in the Trust, (iv) change the
redemption provisions, (v) change the conditions precedent for the Sponsor to
elect to dissolve the Trust and distribute the Debentures to the Holders of the
Securities, (vi) change the Liquidation Distribution or other provisions
relating to the distribution of amounts payable upon the dissolution and
liquidation of the Trust, (vii) affect the limited liability of any Holder of
the Securities or (viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on or after the due
date therefor (or, in the case of redemption, on the Redemption Date).
8. Pro Rata.
A reference herein to any payment, distribution or treatment as being
"Pro Rata" shall mean pro rata to each Holder of Securities according to the
aggregate Liquidation Amount of the Securities held by such Holder in relation
to the aggregate Liquidation Amount of all Securities outstanding unless, in
relation to a payment, an Event of Default under the Agreement has occurred and
is continuing, in which case any funds legally available to make such payment
shall
I-10
<PAGE> 81
be paid first to each Holder of the Preferred Securities pro rata according to
the aggregate Liquidation Amount of Preferred Securities held by such Holder
relative to the aggregate Liquidation Amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate Liquidation Amount of Common Securities held by such Holder
relative to the aggregate Liquidation Amount of all Common Securities
outstanding.
9. Ranking.
The Preferred Securities rank pari passu with the Common Securities and
payment thereon shall be made Pro Rata with the Common Securities, except that,
if an Event of Default under the Agreement occurs and is continuing, no payments
in respect of Distributions on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Securities shall be made until the Holders
of the Preferred Securities shall be paid in full the Distributions, Redemption
Price, Liquidation Distribution and other payments to which they are entitled at
such time.
10. Acceptance of Securities Guarantees and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee, the Common Securities Guarantee and the Indenture, including the
subordination provisions therein.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar
rights to subscribe for any additional securities of the Trust.
12. Miscellaneous.
These terms constitute a part of the Agreement.
The Sponsor will provide a copy of the Agreement, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate)
and the Indenture (including any supplemental indenture) to a Holder without
charge on written request to the Sponsor at its principal place of business.
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<PAGE> 82
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY, INSERT:
THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE MEANING OF THE
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING
AGENCY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE AGREEMENT AND NO TRANSFER OF
THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A
WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE
OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING
AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
A1-1
<PAGE> 83
Certificate Number Number of Preferred
Securities
__________________ _______________________
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
HERCULES TRUST IV
[____%] [Floating Rate] Preferred Securities
(liquidation amount $ ____ per Preferred Security)
HERCULES TRUST IV, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of __________ securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [____%] [Floating Rate] Preferred Securities (liquidation amount
$ ____ per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Trust Agreement of the Trust dated as of _____________, ____, as the
same may be amended from time to time (the "Agreement"), including the
designation of the terms of the Preferred Securities as set forth in Annex I to
the Agreement. Capitalized terms used but not defined herein shall have the
meaning given them in the Agreement. The Sponsor will provide a copy of the
Agreement, the Preferred Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the Agreement
and is entitled to the benefits thereunder and to the benefits of the Preferred
Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
A1-2
<PAGE> 84
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of _________________,________.
HERCULES TRUST IV
By:_________________________________
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:___________________________
Authorized Signatory
A1-3
<PAGE> 85
[FORM OF REVERSE OF SECURITY]
Distributions on each Preferred Security will be payable at a rate per
annum [of ____ %] [equal to LIBOR plus ____%] (the "Distribution Rate") of the
Liquidation Amount of $ ____ per Preferred Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. [LIBOR
and the amount payable in respect of a Distribution for a Distribution Period
will be calculated by the Calculation Agent in the same manner as LIBOR and the
interest payable in respect of each Interest Period for the Debentures, as set
forth in the Indenture.] Distributions in arrears for more than one ______
period will bear additional distributions thereon compounded ______ at the
applicable periodic Distribution Rate (to the extent permitted by applicable
law). The term "Distributions", as used herein, includes any such additional
distributions unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor.
Distributions on the Preferred Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from _____________, ____, to but excluding
the related Distribution Date (as defined herein) or any date fixed for
redemption (a "Redemption Date") and will be payable ______ in arrears on
_________, [___________, _________] and ________ of each year, commencing
______________, _____ (each, a "Distribution Date"), except as otherwise
described below and in the Agreement. The amount of Distributions payable for
any Distribution Period will be computed on the basis of [a 360-day year
consisting of twelve 30-day months] [the actual number of days elapsed in such
period and a year of 360 days]. "Distribution Period" means the period from and
including the immediately preceding Distribution Date (or _______, _____, in the
case of the first Distribution Period) to but excluding the applicable
Distribution Date or Redemption Date. If a Distribution Date is not a Business
Day, then (such Distribution Date and the first day of the Distribution Period
commencing on such Distribution Date will be the next succeeding Business Day,
except if such Business Day is in the next succeeding calendar month, such
Distribution Date and the first day of such Distribution Period will be the
immediately preceding Business Day] [payments of any Distribution payable on
such date will be made on the next succeeding Business Day, and no interest or
other payment in respect of such delay shall accumulate for the period to but
excluding such Business Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding ______
consecutive _______ periods (each, an "Extension Period"), provided that an
Extension Period must end on an interest payment date for the Debentures and may
not extend beyond the stated maturity date or redemption date for the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, ______ Distributions
A1-4
<PAGE> 86
will continue to accumulate with additional interest thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Distribution Rate then in
effect compounded ______ during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further defer
payments of interest by further extending such Extension Period; provided that
such Extension Period, together with all such previous and further extensions,
may not exceed ______ consecutive ______ periods, must end on an interest
payment date for the Debentures and may not extend beyond the Maturity Date or
Redemption Date of the Debentures. At the end of the Extension Period, all
accumulated and unpaid Distributions (but only to the extent payments are made
in respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor) will be payable to the Holders as
they appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period (or any extension period thereof) and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
foregoing requirements.
The Preferred Securities shall be redeemable [and convertible] [and
exchangeable] as provided in the Agreement.
A1-5
<PAGE> 87
ASSIGNMENT
---------------------
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
___________________________________ agent to transfer this Preferred Security
Certificate on the books of the Trust. The agent may substitute another to act
for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee**: ___________________________________
______________
*** Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
A1-6
<PAGE> 88
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE SUBJECT
TO THE TERMS OF THE AGREEMENT (AS DEFINED HEREIN)
Certificate Number Number of Common Securities
__________________ ____________________
Certificate Evidencing Common Securities
of
HERCULES TRUST IV
[____ %] [Floating Rate] Common Securities
(liquidation amount $ ____ per Common Security)
HERCULES TRUST IV, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
Hercules Incorporated (the "Holder") is the registered owner of
__________ securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the [____%] [Floating
Rate] Common Securities (liquidation amount $ ____ per Common Security)
(the "Common Securities"). The Common Securities are not transferable.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby
are issued and shall in all respects be subject to the provisions of
the Amended and Restated Trust Agreement of the Trust dated as of
______________, ______, as the same may be amended from time to time
(the "Agreement"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Agreement. Capitalized terms
used but not defined herein shall have the meaning given them in the
Agreement. The Sponsor will provide a copy of the Agreement, the Common
Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Agreement and is entitled to the benefits thereunder and to the
benefits of the Common Securities Guarantee to the extent provided
therein.
By acceptance, the Holder agrees to treat, for United States
Federal income tax purposes, the Debentures as indebtedness and the
Common Securities as evidence of indirect beneficial ownership in the
Debentures.
A2-1
<PAGE> 89
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of __________________,__________.
HERCULES TRUST IV
By:____________________________
Name:
Title: Administrative Trustee
A2-2
<PAGE> 90
[FORM OF REVERSE OF SECURITY]
Distributions on each Common Security will be payable at a rate per
annum [of ____%] [equal to LIBOR plus ____ %] (the "Distribution Rate") of the
Liquidation Amount of $ ____ per Common Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. [LIBOR
and the amount payable in respect of a Distribution for a Distribution Period
will be calculated by the Calculation Agent in the same manner as LIBOR and the
interest payable in respect of each Interest Period for the Debentures, as set
forth in the Indenture.] Distributions in arrears for more than one ____ period
will bear additional distributions thereon compounded ____ at the applicable
periodic Distribution Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes any such additional distributions
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds legally available therefor.
Distributions on the Common Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from __________, ____ , to but excluding the
related Distribution Date (as defined herein) or any date fixed for redemption
(a "Redemption Date"), and will be payable ______ in arrears on _________[,
____________, ___________] and ____________ of each year, commencing __________
, _____ (each, a "Distribution Date"), except as otherwise described below and
in the Agreement. The amount of Distributions payable for any Distribution
Period will be computed on the basis of [a 360-day year consisting of twelve
30-day months] [the actual number of days elapsed in such period and a year of
360 days]. "Distribution Period" means the period from and including the
immediately preceding Distribution Date (or ________, _____, in the case of the
first Distribution Period) to but excluding the applicable Distribution Date or
Redemption Date. If a Distribution Date is not a Business Day, then [such
Distribution Date and the first day of the Distribution Period commencing on
such Distribution Date will be the next succeeding Business Day, except if such
Business Day is in the next succeeding calendar month, such Distribution Date
and the first day of such Distribution Period will be the immediately preceding
Business Day] [payment s of any Distributions payable on such date will be made
on the next succeeding Business Day, and no interest or other payment in respect
of any such delay shall accumulate for the period to but excluding such Business
Day].
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding ______
consecutive ______ periods (each, an "Extension Period"), provided that an
Extension Period must end on an interest payment date for the Debentures and may
not extend beyond the stated maturity date or redemption date for the
Debentures. As a consequence of
A2-3
<PAGE> 91
such deferral, Distributions will also be deferred. Despite such deferral,
______ Distributions will continue to accumulate with additional interest
thereon (to the extent permitted by applicable law but not at a rate greater
than the rate at which interest is then accruing on the Debentures) at the
Distribution Rate then in effect compounded ______ during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension Period, together with all such
previous and further extensions, may not exceed ______ consecutive ______
periods, must end on an interest payment date for the Debentures and may not
extend beyond the Maturity Date or Redemption Date of the Debentures. At the end
of the Extension Period, all accumulated and unpaid Distributions (but only to
the extent payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor) will be payable to the Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the foregoing requirements.
The Common Securities shall be redeemable [and convertible] [and
exchangeable] as provided in the Agreement.
A2-4
<PAGE> 92
EXHIBIT B
[Insert Specimen Debenture]
B-1
<PAGE> 93
EXHIBIT C
[Insert Purchase Agreement]
C-1
<PAGE> 1
COMMON STOCK COMMON STOCK
HERCULES LOGO
CUSIP 427056 10 6
NUMBER SHARES
N________ ________
HERCULES INCORPORATED
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT SEE REVERSE SIDE
FOR EXPLANATION
OF CERTAIN
ABBREVIATIONS
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Hercules Incorporated, transferable on the books of the Corporation by the
holder hereof, in person or by duly authorized attorney, upon surrender of this
Certificate properly endorsed. This Certificate and the shares represented
hereby are subject to all of the provisions of the Certificate of Incorporation
of the Corporation as now or hereafter amended, copies of which are on file with
the Transfer Agent, to all of which the holder by acceptance hereof asserts.
This Certificate is not valid until countersigned by a Transfer Agent
and registered by a Registrar.
Witness the seal of the Corporation and the signatures of its
duly authorized officers.
Dated
Countersigned and Registered
ChaseMellon Shareholder Services, LLC
/s/ R. Keith Elliott
TRANSFER AGENT
AND REGISTRAR CHAIRMAN OF THE BOARD
/s/ Jan M. King
AUTHORIZED SIGNATURE TREASURER
<PAGE> 2
HERCULES LOGO
A full statement of the designations, preferences, and relative, participating,
optional, or other special rights of each class of stock of the corporation or
series thereof and the qualifications, limitations, or restrictions of such
preferences and/or rights will be furnished by the corporation, without charge,
to each stockholder who so requests, upon application to the transfer agent, or
to the secretary of the corporation.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY
AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT-.....Custodian ......
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors
Act
JT TEN - as joint tenants with right of (State)
survivorship and not as
tenants in common
Additional abbreviations may also be used though not in
the above list.
For Value Received __________ hereby sell, assign, and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ------------------------------------------------------------------------- Shares
of the Capital Stock represented by the within Certificate and do hereby
irrevocably constitute and appoint_____________________________
Attorney to transfer the said stock on the Books of the within-named
Corporation, with full power of substitution in the premises.
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<PAGE> 3
Dated__________________
X ___________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED BY: ___________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
3
<PAGE> 1
PREFERRED SECURITIES GUARANTEE AGREEMENT
HERCULES INCORPORATED
Dated as of ___________, ____
<PAGE> 2
TABLE OF CONTENTS
Table of Contents
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.....................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application...................................5
SECTION 2.2 Lists of Holders of Securities.....................................6
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee..............6
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee.........6
SECTION 2.5 Evidence of Compliance with Conditions Precedent...................7
SECTION 2.6 Events of Default; Waiver..........................................7
SECTION 2.7 Event of Default; Notice...........................................7
SECTION 2.8 Conflicting Interests..............................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee....8
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee..........10
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee.........................................................12
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility...............12
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee.................................................13
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.........................................................14
SECTION 5.2 Waiver of Notice and Demand.......................................14
SECTION 5.3 Obligations Not Affected..........................................14
SECTION 5.4 Rights of Holders.................................................15
SECTION 5.5 Guarantee of Payment..............................................16
SECTION 5.6 Subrogation.......................................................16
SECTION 5.7 Independent Obligations...........................................16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions........................................16
SECTION 6.2 Ranking...........................................................17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.......................................................17
ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation.......................................................18
SECTION 8.2 Indemnification...................................................18
SECTION 8.3 Compensation......................................................19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns............................................19
SECTION 9.2 Amendments........................................................20
SECTION 9.3 Notices...........................................................20
SECTION 9.4 Benefit...........................................................21
SECTION 9.5 Governing Law.....................................................21
ii
<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Preferred
Securities Guarantee"), dated as of ___________, ____, is executed and delivered
by Hercules Incorporated, a Delaware corporation (the "Guarantor"), and The
Chase Manhattan Bank, a New York banking corporation, as trustee (the "Preferred
Securities Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Hercules Trust I, a statutory business trust formed under the laws of the State
of Delaware (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Agreement"), dated as of ___________, ____, among the trustees of the
Issuer, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof _______ preferred securities, having an aggregate
liquidation amount of $___________, such preferred securities being designated
the ___________________ Preferred Securities (collectively, the "Preferred
Securities").
WHEREAS, as an incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein.
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") with substantially
identical terms to this Preferred Securities Guarantee, for the benefit of the
holders of the Common Securities (as defined herein), except that if an event of
default under the Agreement has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated, to the extent and in the manner set forth
in the Common Securities Guarantee, to the rights of holders of Preferred
Securities to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
<PAGE> 5
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Agreement as at the date of execution of
this Preferred Securities Guarantee have the same meaning when
used in this Preferred Securities Guarantee unless otherwise
defined in this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred
Securities Guarantee as modified, supplemented or amended from
time to time;
(e) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless
otherwise defined in this Preferred Securities Guarantee or
unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York or
Wilmington, Delaware are authorized or required by law, regulation or executive
order to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
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"Corporate Trust Office" means the office of the Preferred
Securities Guarantee Trustee for the conduct of corporate trust business, at
which matters related to this Preferred Securities Guarantee Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at One Liberty Place, 52nd Floor, 1650
Market Street, Philadelphia, Pennsylvania 19103.
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the _______________ Junior Subordinated
Deferrable Interest Debentures due ___________, held by the Property Trustee (as
defined in the Agreement) of the Issuer.
"Event of Default" means (i) a default by the Guarantor in
respect of any of its payment or other obligations under this Preferred
Securities Guarantee or (ii) if applicable, the failure of the Guarantor to
deliver the required securities upon an appropriate election by any Holder or
Preferred Securities to convert such Preferred Securities into such securities
in accordance with their terms.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Agreement) that are required to be paid on such
Preferred Securities, to the extent the Issuer has funds legally available
therefor at such time, (ii) the redemption price, including all accumulated and
unpaid Distributions to the date of redemption (the "Redemption Price"), to the
extent the Issuer has funds legally available therefor at such time, with
respect to any Preferred Securities called for redemption by the Issuer, and
(iii) upon a voluntary or involuntary dissolution and liquidation of the Issuer
(other than in connection with the distribution of the Debentures to holders of
the Preferred Securities or the redemption[, conversion or exchange] of the
Preferred Securities as provided in the Agreement), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
on the Preferred Securities to the date of payment, to the extent the Issuer has
funds legally available therefor at such time, and (b) the amount of assets of
the Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution"). If an event of default
under the Agreement has occurred and is continuing, no Guarantee Payments under
the Common Securities Guarantee with respect to the Common Securities or any
guarantee payment under any Other Common Securities Guarantees shall be made
until the Holders of Preferred Securities shall be paid in full the Guarantee
Payments to which they are entitled under this Preferred Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
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"Indemnified Person" means the Preferred Securities Guarantee
Trustee, any Affiliate of the Preferred Securities Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Preferred Securities
Guarantee Trustee.
"Indenture" means the Indenture dated as of ___________,
_____, between the Hercules Incorporated, as issuer (the "Debenture Issuer"),
and The Chase Manhattan Bank, as trustee, relating to the Junior Subordinated
Debentures, pursuant to which the Debentures are to be issued to the Property
Trustee of the Issuer.
"Majority in liquidation amount of the Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Holder(s) of
Preferred Securities, voting separately as a class, of more than 50% of the
aggregate liquidation amount (including the amount payable on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Guarantor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same
meaning as "Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures
issued by the Guarantor from time to time and sold to trusts established by the
Guarantor, in each case similar to the Issuer.
"Other Guarantees" means all guarantees issued by the
Guarantor with respect to preferred securities similar to the Preferred
Securities issued by other trusts established by the Guarantor, in each case
similar to the Issuer.
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<PAGE> 8
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee Trustee" means The Chase
Manhattan Bank, a New York banking corporation, until a Successor Preferred
Securities Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Securities Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Securities Guarantee Trustee, any officer within the Corporate Trust Office of
the Preferred Securities Guarantee Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, any assistant treasurer or
other officer of the Corporate Trust Office of the Preferred Securities
Guarantee Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Preferred Securities
Guarantee Trustee to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Securities Guarantee Trustee" means a
successor Preferred Securities Guarantee Trustee possessing the qualifications
to act as Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means, collectively, the Common Securities
and the Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions.
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(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Securities
Guarantee Trustee (unless the Preferred Securities Guarantee Trustee is
otherwise the registrar of the Preferred Securities) with a list, in such form
as the Preferred Securities Guarantee Trustee may reasonably require, of the
names and addresses of the Holders of the Preferred Securities ("List of
Holders"), (i) within 14 days after each record date for payment of
Distributions, as of such record date and (ii) at any other time within 30 days
of receipt by the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the Preferred
Securities Guarantee Trustee, provided that the Guarantor shall not be obligated
to provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Preferred Securities Guarantee
Trustee by the Guarantor. The Preferred Securities Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new List of Holders.
(b) The Preferred Securities Guarantee Trustee shall comply
with its obligations under Sections 311(a), 311(b) and Section 312(b) of the
Trust Indenture Act.
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after September 1 of each year, commencing
September 1, __________, the Preferred Securities Guarantee Trustee shall
provide to the Holders of the Preferred Securities such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Preferred Securities
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Preferred Securities Guarantee Trustee
is for informational purposes only and the Preferred Securities Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Guarantor's compliance with any of its covenants
hereunder (as to which the Preferred Securities Guarantee Trustee is entitled to
rely exclusively on Officers' Certificates).
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SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Securities Guarantee Trustee shall, within
90 days after the occurrence of a default with respect to this Preferred
Securities Guarantee, mail by first class postage prepaid, to all Holders of the
Preferred Securities, notices of all defaults actually known to a Responsible
Officer of the Preferred Securities Guarantee Trustee, unless such defaults have
been cured before the giving of such notice, provided, that, except in the case
of default in the payment of any Guarantee Payment, the Preferred Securities
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Preferred Securities Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Preferred Securities.
(b) The Preferred Securities Guarantee Trustee shall not be
deemed to have knowledge of any Event of Default unless the Preferred Securities
Guarantee Trustee shall have received written notice, or a Responsible Officer
of the Preferred Securities Guarantee Trustee shall have obtained actual
knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
The Indenture shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the
Preferred Securities Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Preferred Securities Guarantee Trustee shall not
transfer this Preferred Securities Guarantee to any Person except a Holder of
Preferred Securities exercising his or her rights pursuant to Section 5.4(b) or
to a Successor Preferred Securities Guarantee Trustee on acceptance by such
Successor Preferred Securities Guarantee Trustee of its appointment to act as
Successor Preferred Securities Guarantee Trustee. The right, title and interest
of the Preferred Securities Guarantee Trustee shall automatically vest in any
Successor Preferred Securities Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Preferred Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Securities Guarantee Trustee has occurred and is
continuing, the Preferred Securities Guarantee Trustee shall enforce this
Preferred Securities Guarantee for the benefit of the Holders of the Preferred
Securities. In such event, any moneys collected shall first be paid to the
Preferred Securities Guarantee Trustee for amounts due under Section 8.3 and
then to the Holders of the Preferred Securities.
(c) The Preferred Securities Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities Guarantee, and no implied
covenants shall be read into this Preferred Securities Guarantee against the
Preferred Securities Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is actually
known to a Responsible Officer of the Preferred Securities Guarantee Trustee,
the Preferred Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Preferred Securities Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Preferred Securities Guarantee shall
be construed to relieve the Preferred Securities Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred
Securities Guarantee Trustee shall be determined solely by the
express provisions of this Preferred
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Securities Guarantee, and the Preferred Securities Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Preferred Securities
Guarantee against the Preferred Securities Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the
Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee 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 Preferred Securities Guarantee Trustee and conforming
to the requirements of this Preferred Securities Guarantee;
but in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished
to the Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Preferred Securities Guarantee (but shall
not be required to confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the Preferred Securities Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer of the Preferred Securities Guarantee Trustee, unless it shall
be proved that the Preferred Securities Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Preferred Securities Guarantee Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of a
Majority in liquidation amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Preferred Securities Guarantee Trustee, or exercising
any trust or power conferred upon the Preferred Securities Guarantee
Trustee under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Securities Guarantee Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Preferred Securities Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably satisfactory to
the Preferred Securities Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
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SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Securities Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or refraining
from acting, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Securities Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Securities
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor;
(iv) the Preferred Securities Guarantee Trustee may consult
with counsel of its selection, and the advice or opinion of such
counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Guarantor or any
of its Affiliates and may include any of its employees. The Preferred
Securities Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Preferred Securities
Guarantee from any court of competent jurisdiction;
(v) the Preferred Securities Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by
this Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Preferred
Securities Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Preferred Securities Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Preferred Securities Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Securities Guarantee
Trustee; provided that, nothing contained in this Section 3.2(a)(v)
shall be taken to relieve the Preferred Securities Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by the terms of this
Preferred Securities Guarantee;
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(vi) the Preferred Securities Guarantee Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Securities Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(vii) the Preferred Securities Guarantee Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees, custodians or
attorneys, and the Preferred Securities Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(viii) any action taken by the Preferred Securities Guarantee
Trustee or its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Securities Guarantee
Trustee or its agents alone shall be sufficient and effective to
perform any such action. No third party shall be required to inquire as
to the authority of the Preferred Securities Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of
this Preferred Securities Guarantee, both of which shall be
conclusively evidenced by the Preferred Securities Guarantee Trustee's
or its agent's taking such action;
(ix) whenever in the administration of this Preferred
Securities Guarantee the Preferred Securities Guarantee Trustee shall
deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Preferred
Securities Guarantee Trustee (A) may request instructions from the
Holders of a Majority in liquidation amount of the Preferred
Securities, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in conclusively relying on or acting in accordance
with such instructions; and
(x) the Preferred Securities Guarantee Trustee shall not be
liable for any action taken, suffered, or omitted to be taken by it in
good faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Preferred Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Preferred Securities Guarantee
Trustee shall be construed to be a duty.
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SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee
The recitals contained in this Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Preferred Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Preferred Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Securities
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Securities Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the Preferred
Securities Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).
(c) If the Preferred Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Securities Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
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SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee
(a) Subject to Section 4.2(b), the Preferred Securities
Guarantee Trustee may be appointed or removed without cause at any time by the
Guarantor except during the occurrence and continuance of an Event of Default.
(b) The Preferred Securities Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor.
(c) The Preferred Securities Guarantee Trustee shall hold
office until a Successor Preferred Securities Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Securities
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Securities
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Preferred Securities Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Preferred Securities Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Securities Guarantee Trustee.
(d) If no Successor Preferred Securities Guarantee Trustee
shall have been appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery of an instrument of removal or resignation,
the Preferred Securities Guarantee Trustee resigning or being removed may
petition any court of competent jurisdiction for appointment of a Successor
Preferred Securities Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Preferred Securities Guarantee Trustee.
(e) No Preferred Securities Guarantee Trustee shall be liable
for the acts or omissions to act of any Successor Preferred Securities Guarantee
Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts due to the Preferred Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders. The Guarantor will honor all
obligations, if any, relating to the conversion of the Preferred Securities into
securities of the Guarantor as set forth in the Agreement and the Indenture.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders
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pursuant to the terms of the Preferred Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor;
it being the intent of this Section 5.3 that the obligations of the Guarantor
with respect to the Guarantee Payments shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Preferred Securities
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Securities Guarantee
Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Securities Guarantee Trustee fails to
enforce this Preferred Securities Guarantee, any Holder of Preferred Securities
may institute a legal proceeding directly against the Guarantor to enforce the
rights of such Holder under this Preferred Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Preferred Securities
Guarantee Trustee or any other person or entity. The Guarantor waives any right
or remedy to require that any action be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
If the Guarantor has failed to make a required Guarantee
Payment, a Holder of Preferred Securities may directly institute a proceeding
against the Guarantor for enforcement of this Preferred Securities Guarantee for
such Guarantee Payment.
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SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, the
Guarantor shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Guarantor's capital stock (which includes common and preferred stock) or
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Guarantor (including any Other
Debentures) that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor
(including Other Guarantees) if such guarantee ranks pari passu or junior in
right of payment to the Debentures (other than (a) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, common stock of the Guarantor, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the
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future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Preferred Securities Guarantee, (d) as a result of a
reclassification of the Guarantor's capital stock or the exchange or the
conversion of one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock, (e) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, and (f) purchases of common stock related to the issuance of common
stock or rights under any of the Guarantor's benefit plans for its directors,
officers or employees or any of the Guarantor's dividend reinvestment plans) if
at such time (i) there shall have occurred any event of which the Guarantor has
actual knowledge that is, or with the giving of notice or the lapse of time, or
both, would be an Event of Default, (ii) the Guarantor shall be in default with
respect to its payment obligations under this Preferred Securities Guarantee or
(iii) the Guarantor shall have given notice of its election of the exercise of
its right to extend the interest payment period pursuant to Section 4.01(b) of
the Indenture and shall not have rescinded such notice, and any such extension
shall have commenced and be continuing.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor except any
liabilities (including the Other Guarantees, the Common Securities Guarantee and
the Other Common Securities Guarantees) that may be pari passu or junior
expressly by their terms, and (ii) senior to the Guarantor's capital stock now
or hereafter issued by the Guarantor, if any, and with any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor. The foregoing subordination
shall not apply to amounts payable under Article VIII.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (i)
[conversion of the Preferred Securities into securities of an entity other than
the Issuer, (ii)] full payment of the Redemption Price of all Preferred
Securities, or (ii) [iii] liquidation of the Issuer, the full payment of the
amounts payable in accordance with the Agreement or the distribution of the
Debentures to the Holders of all of the Preferred Securities. Notwithstanding
the foregoing, this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of
Preferred Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
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ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage, liability, expense or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that this provision shall not be deemed to modify Section 3.1(d).
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Preferred Securities Guarantee or the resignation or removal of the Preferred
Securities Guarantee Trustee.
The Preferred Securities Guarantee Trustee will not claim or
exact any lien or charge on any Guarantee Payments as a result of any amount due
to it under this Preferred Securities Guarantee.
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SECTION 8.3 Compensation
The Guarantor agrees:
(a) to pay to the Preferred Securities Guarantee Trustee from
time to time such compensation as shall be agreed in writing between the Company
and the Preferred Securities Guarantee Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) to reimburse the Preferred Securities Guarantee Trustee
upon its request for reasonable expenses, disbursements and advances incurred or
made by the Preferred Securities Guarantee Trustee in accordance with any
provision of this Preferred Securities Guarantee (including the reasonable
compensation and the expenses and advances of its agents and counsel), except
any such expense or advance as may be attributable to its negligence or bad
faith.
Subject to Section 8.2, the Preferred Securities Guarantee
Trustee shall have a claim and lien prior to the Holders as to all property and
funds held by it hereunder for any amount owing to it or any predecessor
Preferred Securities Guarantee Trustee for fees and expenses pursuant to this
Article.
ARTICLE VIII
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
Except in connection with any merger or consolidation of the
Guarantor with or into another entity permitted by the Indenture or any sale,
transfer or lease of the Guarantor's assets to another entity permitted by the
Indenture, the Guarantor may not assign its rights or delegate its obligations
under this Preferred Securities Guarantee.
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SECTION 9.2 Amendments
Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no approval of Holders
will be required), this Preferred Securities Guarantee may only be amended with
the prior approval of the Holders of a Majority in liquidation amount of the
outstanding Preferred Securities (including the amount payable on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined). The provisions of Section
12.2 of the Agreement with respect to meetings of Holders of the Securities
apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Administrative
Trustee at the Issuer's mailing address set forth below (or such other address
as the Issuer may give notice of to the Holders of the Common Securities):
Hercules Trust I
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd,
Administrative Trustee
Telecopy: (302) 594-7252
(b) If given to the Preferred Securities Guarantee Trustee, at
the Preferred Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Preferred Securities Guarantee Trustee may give notice
of to the Holders of the Preferred Securities):
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
Telecopy: (215) 972-8372
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(c) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Preferred Securities):
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Vice President and Treasurer, and
Corporate Secretary
Telecopy: (302) 594-5210
(d) If given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit
of the Holders of the Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF EXCEPT THAT THE RIGHTS,
LIMITATIONS OF RIGHTS, OBLIGATIONS, DUTIES AND IMMUNITIES OF THE PREFERRED
SECURITIES GUARANTEE TRUSTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
HERCULES INCORPORATED,
as Guarantor
By:___________________________________
Name:
Title:
The Chase Manhattan Bank, as Preferred
Securities Guarantee Trustee
By:___________________________________
Name:
Title:
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PREFERRED SECURITIES GUARANTEE AGREEMENT
HERCULES INCORPORATED
Dated as of ___________, ____
<PAGE> 2
TABLE OF CONTENTS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation .........................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application .......................................5
SECTION 2.2 Lists of Holders of Securities .........................................6
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee ..................6
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee .............6
SECTION 2.5 Evidence of Compliance with Conditions Precedent .......................7
SECTION 2.6 Events of Default; Waiver ..............................................7
SECTION 2.7 Event of Default; Notice ...............................................7
SECTION 2.8 Conflicting Interests ..................................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee ........8
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee ..............10
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee .............................................................12
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility ...................12
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee .....................................................13
</TABLE>
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ARTICLE V
GUARANTEE
<TABLE>
<CAPTION>
<S> <C>
SECTION 5.1 Guarantee .............................................................14
SECTION 5.2 Waiver of Notice and Demand ...........................................14
SECTION 5.3 Obligations Not Affected ..............................................14
SECTION 5.4 Rights of Holders .....................................................15
SECTION 5.5 Guarantee of Payment ..................................................16
SECTION 5.6 Subrogation ...........................................................16
SECTION 5.7 Independent Obligations ...............................................16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions ............................................16
SECTION 6.2 Ranking ...............................................................17
ARTICLE VII
TERMINATION
SECTION 7.1. Termination ...........................................................17
ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation ...........................................................18
SECTION 8.2 Indemnification .......................................................18
SECTION 8.3 Compensation ..........................................................19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns ................................................19
SECTION 9.2 Amendments ............................................................20
SECTION 9.3 Notices ...............................................................20
SECTION 9.4 Benefit ...............................................................21
SECTION 9.5 Governing Law .........................................................21
</TABLE>
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<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Preferred
Securities Guarantee"), dated as of ___________, ____, is executed and delivered
by Hercules Incorporated, a Delaware corporation (the "Guarantor"), and The
Chase Manhattan Bank, a New York banking corporation, as trustee (the "Preferred
Securities Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Hercules Trust II, a statutory business trust formed under the laws of the State
of Delaware (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Agreement"), dated as of ___________, ____, among the trustees of the
Issuer, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof _______ preferred securities, having an aggregate
liquidation amount of $___________, such preferred securities being designated
the ___________________ Preferred Securities (collectively, the "Preferred
Securities").
WHEREAS, as an incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein.
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") with substantially
identical terms to this Preferred Securities Guarantee, for the benefit of the
holders of the Common Securities (as defined herein), except that if an event of
default under the Agreement has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated, to the extent and in the manner set forth
in the Common Securities Guarantee, to the rights of holders of Preferred
Securities to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
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<PAGE> 5
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Agreement as at the date of execution of
this Preferred Securities Guarantee have the same meaning when
used in this Preferred Securities Guarantee unless otherwise
defined in this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred
Securities Guarantee as modified, supplemented or amended from
time to time;
(e) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless
otherwise defined in this Preferred Securities Guarantee or
unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York or
Wilmington, Delaware are authorized or required by law, regulation or executive
order to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
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"Corporate Trust Office" means the office of the Preferred
Securities Guarantee Trustee for the conduct of corporate trust business, at
which matters related to this Preferred Securities Guarantee Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at One Liberty Place, 52nd Floor, 1650
Market Street, Philadelphia, Pennsylvania 19103.
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the _______________ Junior Subordinated
Deferrable Interest Debentures due ___________, held by the Property Trustee (as
defined in the Agreement) of the Issuer.
"Event of Default" means (i) a default by the Guarantor in
respect of any of its payment or other obligations under this Preferred
Securities Guarantee or (ii) if applicable, the failure of the Guarantor to
deliver the required securities upon an appropriate election by any Holder or
Preferred Securities to convert such Preferred Securities into such securities
in accordance with their terms.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Agreement) that are required to be paid on such
Preferred Securities, to the extent the Issuer has funds legally available
therefor at such time, (ii) the redemption price, including all accumulated and
unpaid Distributions to the date of redemption (the "Redemption Price"), to the
extent the Issuer has funds legally available therefor at such time, with
respect to any Preferred Securities called for redemption by the Issuer, and
(iii) upon a voluntary or involuntary dissolution and liquidation of the Issuer
(other than in connection with the distribution of the Debentures to holders of
the Preferred Securities or the redemption[, conversion or exchange] of the
Preferred Securities as provided in the Agreement), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
on the Preferred Securities to the date of payment, to the extent the Issuer has
funds legally available therefor at such time, and (b) the amount of assets of
the Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution"). If an event of default
under the Agreement has occurred and is continuing, no Guarantee Payments under
the Common Securities Guarantee with respect to the Common Securities or any
guarantee payment under any Other Common Securities Guarantees shall be made
until the Holders of Preferred Securities shall be paid in full the Guarantee
Payments to which they are entitled under this Preferred Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
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"Indemnified Person" means the Preferred Securities Guarantee
Trustee, any Affiliate of the Preferred Securities Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Preferred Securities
Guarantee Trustee.
"Indenture" means the Indenture dated as of ___________,
_____, between the Hercules Incorporated, as issuer (the "Debenture Issuer"),
and The Chase Manhattan Bank, as trustee, relating to the Junior Subordinated
Debentures, pursuant to which the Debentures are to be issued to the Property
Trustee of the Issuer.
"Majority in liquidation amount of the Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Holder(s) of
Preferred Securities, voting separately as a class, of more than 50% of the
aggregate liquidation amount (including the amount payable on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Guarantor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same
meaning as "Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures
issued by the Guarantor from time to time and sold to trusts established by the
Guarantor, in each case similar to the Issuer.
"Other Guarantees" means all guarantees issued by the
Guarantor with respect to preferred securities similar to the Preferred
Securities issued by other trusts established by the Guarantor, in each case
similar to the Issuer.
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"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee Trustee" means The Chase
Manhattan Bank, a New York banking corporation, until a Successor Preferred
Securities Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Securities Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Securities Guarantee Trustee, any officer within the Corporate Trust Office of
the Preferred Securities Guarantee Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, any assistant treasurer or
other officer of the Corporate Trust Office of the Preferred Securities
Guarantee Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Preferred Securities
Guarantee Trustee to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Securities Guarantee Trustee" means a
successor Preferred Securities Guarantee Trustee possessing the qualifications
to act as Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means, collectively, the Common Securities
and the Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions.
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(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Securities
Guarantee Trustee (unless the Preferred Securities Guarantee Trustee is
otherwise the registrar of the Preferred Securities) with a list, in such form
as the Preferred Securities Guarantee Trustee may reasonably require, of the
names and addresses of the Holders of the Preferred Securities ("List of
Holders"), (i) within 14 days after each record date for payment of
Distributions, as of such record date and (ii) at any other time within 30 days
of receipt by the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the Preferred
Securities Guarantee Trustee, provided that the Guarantor shall not be obligated
to provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Preferred Securities Guarantee
Trustee by the Guarantor. The Preferred Securities Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new List of Holders.
(b) The Preferred Securities Guarantee Trustee shall comply
with its obligations under Sections 311(a), 311(b) and Section 312(b) of the
Trust Indenture Act.
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after September 1 of each year, commencing
September 1,____, the Preferred Securities Guarantee Trustee shall provide to
the Holders of the Preferred Securities such reports as are required by Section
313 of the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Preferred Securities Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Preferred Securities Guarantee Trustee
is for informational purposes only and the Preferred Securities Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Guarantor's compliance with any of its covenants
hereunder (as to which the Preferred Securities Guarantee Trustee is entitled to
rely exclusively on Officers' Certificates).
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SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Securities Guarantee Trustee shall, within
90 days after the occurrence of a default with respect to this Preferred
Securities Guarantee, mail by first class postage prepaid, to all Holders of the
Preferred Securities, notices of all defaults actually known to a Responsible
Officer of the Preferred Securities Guarantee Trustee, unless such defaults have
been cured before the giving of such notice, provided, that, except in the case
of default in the payment of any Guarantee Payment, the Preferred Securities
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Preferred Securities Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Preferred Securities.
(b) The Preferred Securities Guarantee Trustee shall not be
deemed to have knowledge of any Event of Default unless the Preferred Securities
Guarantee Trustee shall have received written notice, or a Responsible Officer
of the Preferred Securities Guarantee Trustee shall have obtained actual
knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
The Indenture shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the
Preferred Securities Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Preferred Securities Guarantee Trustee shall not
transfer this Preferred Securities Guarantee to any Person except a Holder of
Preferred Securities exercising his or her rights pursuant to Section 5.4(b) or
to a Successor Preferred Securities Guarantee Trustee on acceptance by such
Successor Preferred Securities Guarantee Trustee of its appointment to act as
Successor Preferred Securities Guarantee Trustee. The right, title and interest
of the Preferred Securities Guarantee Trustee shall automatically vest in any
Successor Preferred Securities Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Preferred Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Securities Guarantee Trustee has occurred and is
continuing, the Preferred Securities Guarantee Trustee shall enforce this
Preferred Securities Guarantee for the benefit of the Holders of the Preferred
Securities. In such event, any moneys collected shall first be paid to the
Preferred Securities Guarantee Trustee for amounts due under Section 8.3 and
then to the Holders of the Preferred Securities.
(c) The Preferred Securities Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities Guarantee, and no implied
covenants shall be read into this Preferred Securities Guarantee against the
Preferred Securities Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is actually
known to a Responsible Officer of the Preferred Securities Guarantee Trustee,
the Preferred Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Preferred Securities Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Preferred Securities Guarantee shall
be construed to relieve the Preferred Securities Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred
Securities Guarantee Trustee shall be determined solely by the
express provisions of this Preferred
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Securities Guarantee, and the Preferred Securities Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Preferred Securities
Guarantee against the Preferred Securities Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the
Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee 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 Preferred Securities Guarantee Trustee and conforming
to the requirements of this Preferred Securities Guarantee;
but in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished
to the Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Preferred Securities Guarantee (but shall
not be required to confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the Preferred Securities Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer of the Preferred Securities Guarantee Trustee, unless it shall
be proved that the Preferred Securities Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Preferred Securities Guarantee Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of a
Majority in liquidation amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Preferred Securities Guarantee Trustee, or exercising
any trust or power conferred upon the Preferred Securities Guarantee
Trustee under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Securities Guarantee Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Preferred Securities Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably satisfactory to
the Preferred Securities Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
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SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Securities Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or refraining
from acting, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Securities Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Securities
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor;
(iv) the Preferred Securities Guarantee Trustee may consult
with counsel of its selection, and the advice or opinion of such
counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Guarantor or any
of its Affiliates and may include any of its employees. The Preferred
Securities Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Preferred Securities
Guarantee from any court of competent jurisdiction;
(v) the Preferred Securities Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by
this Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Preferred
Securities Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Preferred Securities Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Preferred Securities Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Securities Guarantee
Trustee; provided that, nothing contained in this Section 3.2(a)(v)
shall be taken to relieve the Preferred Securities Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by the terms of this
Preferred Securities Guarantee;
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(vi) the Preferred Securities Guarantee Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Securities Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(vii) the Preferred Securities Guarantee Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees, custodians or
attorneys, and the Preferred Securities Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(viii) any action taken by the Preferred Securities Guarantee
Trustee or its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Securities Guarantee
Trustee or its agents alone shall be sufficient and effective to
perform any such action. No third party shall be required to inquire as
to the authority of the Preferred Securities Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of
this Preferred Securities Guarantee, both of which shall be
conclusively evidenced by the Preferred Securities Guarantee Trustee's
or its agent's taking such action;
(ix) whenever in the administration of this Preferred
Securities Guarantee the Preferred Securities Guarantee Trustee shall
deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Preferred
Securities Guarantee Trustee (A) may request instructions from the
Holders of a Majority in liquidation amount of the Preferred
Securities, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in conclusively relying on or acting in accordance
with such instructions; and
(x) the Preferred Securities Guarantee Trustee shall not be
liable for any action taken, suffered, or omitted to be taken by it in
good faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Preferred Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Preferred Securities Guarantee
Trustee shall be construed to be a duty.
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SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee
The recitals contained in this Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Preferred Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Preferred Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Securities
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Securities Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the Preferred
Securities Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).
(c) If the Preferred Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Securities Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
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SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee
(a) Subject to Section 4.2(b), the Preferred Securities
Guarantee Trustee may be appointed or removed without cause at any time by the
Guarantor except during the occurrence and continuance of an Event of Default.
(b) The Preferred Securities Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor.
(c) The Preferred Securities Guarantee Trustee shall hold
office until a Successor Preferred Securities Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Securities
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Securities
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Preferred Securities Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Preferred Securities Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Securities Guarantee Trustee.
(d) If no Successor Preferred Securities Guarantee Trustee
shall have been appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery of an instrument of removal or resignation,
the Preferred Securities Guarantee Trustee resigning or being removed may
petition any court of competent jurisdiction for appointment of a Successor
Preferred Securities Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Preferred Securities Guarantee Trustee.
(e) No Preferred Securities Guarantee Trustee shall be liable
for the acts or omissions to act of any Successor Preferred Securities Guarantee
Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts due to the Preferred Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders. The Guarantor will honor all
obligations, if any, relating to the conversion of the Preferred Securities into
securities of the Guarantor as set forth in the Agreement and the Indenture.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders
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pursuant to the terms of the Preferred Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor;
it being the intent of this Section 5.3 that the obligations of the Guarantor
with respect to the Guarantee Payments shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Preferred Securities
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Securities Guarantee
Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Securities Guarantee Trustee fails to
enforce this Preferred Securities Guarantee, any Holder of Preferred Securities
may institute a legal proceeding directly against the Guarantor to enforce the
rights of such Holder under this Preferred Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Preferred Securities
Guarantee Trustee or any other person or entity. The Guarantor waives any right
or remedy to require that any action be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
If the Guarantor has failed to make a required Guarantee
Payment, a Holder of Preferred Securities may directly institute a proceeding
against the Guarantor for enforcement of this Preferred Securities Guarantee for
such Guarantee Payment.
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SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, the
Guarantor shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Guarantor's capital stock (which includes common and preferred stock) or
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Guarantor (including any Other
Debentures) that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor
(including Other Guarantees) if such guarantee ranks pari passu or junior in
right of payment to the Debentures (other than (a) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, common stock of the Guarantor, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the
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future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Preferred Securities Guarantee, (d) as a result of a
reclassification of the Guarantor's capital stock or the exchange or the
conversion of one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock, (e) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, and (f) purchases of common stock related to the issuance of common
stock or rights under any of the Guarantor's benefit plans for its directors,
officers or employees or any of the Guarantor's dividend reinvestment plans) if
at such time (i) there shall have occurred any event of which the Guarantor has
actual knowledge that is, or with the giving of notice or the lapse of time, or
both, would be an Event of Default, (ii) the Guarantor shall be in default with
respect to its payment obligations under this Preferred Securities Guarantee or
(iii) the Guarantor shall have given notice of its election of the exercise of
its right to extend the interest payment period pursuant to Section 4.01(b) of
the Indenture and shall not have rescinded such notice, and any such extension
shall have commenced and be continuing.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor except any
liabilities (including the Other Guarantees, the Common Securities Guarantee and
the Other Common Securities Guarantees) that may be pari passu or junior
expressly by their terms, and (ii) senior to the Guarantor's capital stock now
or hereafter issued by the Guarantor, if any, and with any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor. The foregoing subordination
shall not apply to amounts payable under Article VIII.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (i)
[conversion of the Preferred Securities into securities of an entity other than
the Issuer, (ii)] full payment of the Redemption Price of all Preferred
Securities, or (ii) [iii] liquidation of the Issuer, the full payment of the
amounts payable in accordance with the Agreement or the distribution of the
Debentures to the Holders of all of the Preferred Securities. Notwithstanding
the foregoing, this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of
Preferred Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
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ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage, liability, expense or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that this provision shall not be deemed to modify Section 3.1(d).
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Preferred Securities Guarantee or the resignation or removal of the Preferred
Securities Guarantee Trustee.
The Preferred Securities Guarantee Trustee will not claim or
exact any lien or charge on any Guarantee Payments as a result of any amount due
to it under this Preferred Securities Guarantee.
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SECTION 8.3 Compensation
The Guarantor agrees:
(a) to pay to the Preferred Securities Guarantee Trustee from
time to time such compensation as shall be agreed in writing between the Company
and the Preferred Securities Guarantee Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) to reimburse the Preferred Securities Guarantee Trustee
upon its request for reasonable expenses, disbursements and advances incurred or
made by the Preferred Securities Guarantee Trustee in accordance with any
provision of this Preferred Securities Guarantee (including the reasonable
compensation and the expenses and advances of its agents and counsel), except
any such expense or advance as may be attributable to its negligence or bad
faith.
Subject to Section 8.2, the Preferred Securities Guarantee
Trustee shall have a claim and lien prior to the Holders as to all property and
funds held by it hereunder for any amount owing to it or any predecessor
Preferred Securities Guarantee Trustee for fees and expenses pursuant to this
Article.
ARTICLE VIII
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
Except in connection with any merger or consolidation of the
Guarantor with or into another entity permitted by the Indenture or any sale,
transfer or lease of the Guarantor's assets to another entity permitted by the
Indenture, the Guarantor may not assign its rights or delegate its obligations
under this Preferred Securities Guarantee.
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SECTION 9.2 Amendments
Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no approval of Holders
will be required), this Preferred Securities Guarantee may only be amended with
the prior approval of the Holders of a Majority in liquidation amount of the
outstanding Preferred Securities (including the amount payable on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined). The provisions of Section
12.2 of the Agreement with respect to meetings of Holders of the Securities
apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Administrative
Trustee at the Issuer's mailing address set forth below (or such other address
as the Issuer may give notice of to the Holders of the Common Securities):
Hercules Trust II
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd,
Administrative Trustee
Telecopy: (302) 594-7252
(b) If given to the Preferred Securities Guarantee Trustee, at
the Preferred Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Preferred Securities Guarantee Trustee may give notice
of to the Holders of the Preferred Securities):
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
Telecopy: (215) 972-8372
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(c) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Preferred Securities):
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Vice President and Treasurer, and
Corporate Secretary
Telecopy: (302) 594-5210
(d) If given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit
of the Holders of the Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF EXCEPT THAT THE RIGHTS,
LIMITATIONS OF RIGHTS, OBLIGATIONS, DUTIES AND IMMUNITIES OF THE PREFERRED
SECURITIES GUARANTEE TRUSTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
HERCULES INCORPORATED,
as Guarantor
By:
-------------------------------------
Name:
Title:
The Chase Manhattan Bank, as Preferred
Securities Guarantee Trustee
By:
-------------------------------------
Name:
Title:
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PREFERRED SECURITIES GUARANTEE AGREEMENT
HERCULES INCORPORATED
Dated as of ___________, ____
<PAGE> 2
TABLE OF CONTENTS
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.....................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application...................................5
SECTION 2.2 Lists of Holders of Securities.....................................6
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee..............6
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee.........6
SECTION 2.5 Evidence of Compliance with Conditions Precedent...................7
SECTION 2.6 Events of Default; Waiver..........................................7
SECTION 2.7 Event of Default; Notice...........................................7
SECTION 2.8 Conflicting Interests..............................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee....8
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee..........10
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee.........................................................12
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility...............12
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee.................................................13
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.........................................................14
SECTION 5.2 Waiver of Notice and Demand.......................................14
SECTION 5.3 Obligations Not Affected..........................................14
SECTION 5.4 Rights of Holders.................................................15
SECTION 5.5 Guarantee of Payment..............................................16
SECTION 5.6 Subrogation.......................................................16
SECTION 5.7 Independent Obligations...........................................16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions........................................16
SECTION 6.2 Ranking...........................................................17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.......................................................17
ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation.......................................................18
SECTION 8.2 Indemnification...................................................18
SECTION 8.3 Compensation......................................................19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns............................................19
SECTION 9.2 Amendments........................................................20
SECTION 9.3 Notices...........................................................20
SECTION 9.4 Benefit...........................................................21
SECTION 9.5 Governing Law.....................................................21
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PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Preferred
Securities Guarantee"), dated as of ___________, ____, is executed and delivered
by Hercules Incorporated, a Delaware corporation (the "Guarantor"), and The
Chase Manhattan Bank, a New York banking corporation, as trustee (the "Preferred
Securities Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Hercules Trust III, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Agreement"), dated as of ___________, ____, among the trustees of the Issuer,
the Guarantor, as sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing on the
date hereof _______ preferred securities, having an aggregate liquidation amount
of $___________, such preferred securities being designated the
___________________ Preferred Securities (collectively, the "Preferred
Securities").
WHEREAS, as an incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") with substantially identical terms
to this Preferred Securities Guarantee, for the benefit of the holders of the
Common Securities (as defined herein), except that if an event of default under
the Agreement has occurred and is continuing, the rights of holders of the
Common Securities to receive Guarantee Payments under the Common Securities
Guarantee are subordinated, to the extent and in the manner set forth in the
Common Securities Guarantee, to the rights of holders of Preferred Securities to
receive Guarantee Payments under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby acknowledges shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Agreement as at the date of execution of this
Preferred Securities Guarantee have the same meaning when used in
this Preferred Securities Guarantee unless otherwise defined in this
Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee has
the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee, unless otherwise
defined in this Preferred Securities Guarantee or unless the context
otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday or a Sunday, or a
day on which banking institutions in The City of New York or Wilmington,
Delaware are authorized or required by law, regulation or executive order to
close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
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"Corporate Trust Office" means the office of the Preferred
Securities Guarantee Trustee for the conduct of corporate trust business, at
which matters related to this Preferred Securities Guarantee Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at One Liberty Place, 52nd Floor, 1650
Market Street, Philadelphia, Pennsylvania 19103.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt securities
of the Guarantor designated the _______________ Junior Subordinated Deferrable
Interest Debentures due ___________, held by the Property Trustee (as defined in
the Agreement) of the Issuer.
"Event of Default" means (i) a default by the Guarantor in respect
of any of its payment or other obligations under this Preferred Securities
Guarantee or (ii) if applicable, the failure of the Guarantor to deliver the
required securities upon an appropriate election by any Holder or Preferred
Securities to convert such Preferred Securities into such securities in
accordance with their terms.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accumulated and unpaid Distributions (as
defined in the Agreement) that are required to be paid on such Preferred
Securities, to the extent the Issuer has funds legally available therefor at
such time, (ii) the redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the "Redemption Price"), to the extent
the Issuer has funds legally available therefor at such time, with respect to
any Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution and liquidation of the Issuer (other than
in connection with the distribution of the Debentures to holders of the
Preferred Securities or the redemption[, conversion or exchange] of the
Preferred Securities as provided in the Agreement), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
on the Preferred Securities to the date of payment, to the extent the Issuer has
funds legally available therefor at such time, and (b) the amount of assets of
the Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution"). If an event of default
under the Agreement has occurred and is continuing, no Guarantee Payments under
the Common Securities Guarantee with respect to the Common Securities or any
guarantee payment under any Other Common Securities Guarantees shall be made
until the Holders of Preferred Securities shall be paid in full the Guarantee
Payments to which they are entitled under this Preferred Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
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"Indemnified Person" means the Preferred Securities Guarantee
Trustee, any Affiliate of the Preferred Securities Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Preferred Securities
Guarantee Trustee.
"Indenture" means the Indenture dated as of ___________, _____,
between the Hercules Incorporated, as issuer (the "Debenture Issuer"), and The
Chase Manhattan Bank, as trustee, relating to the Junior Subordinated
Debentures, pursuant to which the Debentures are to be issued to the Property
Trustee of the Issuer.
"Majority in liquidation amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the aggregate
liquidation amount (including the amount payable on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Guarantor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation undertaken by the officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning as
"Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures issued
by the Guarantor from time to time and sold to trusts established by the
Guarantor, in each case similar to the Issuer.
"Other Guarantees" means all guarantees issued by the Guarantor with
respect to preferred securities similar to the Preferred Securities issued by
other trusts established by the Guarantor, in each case similar to the Issuer.
4
<PAGE> 8
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee Trustee" means The Chase Manhattan
Bank, a New York banking corporation, until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Preferred Securities Guarantee and thereafter means each
such Successor Preferred Securities Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Securities Guarantee Trustee, any officer within the Corporate Trust Office of
the Preferred Securities Guarantee Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, any assistant treasurer or
other officer of the Corporate Trust Office of the Preferred Securities
Guarantee Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Preferred Securities
Guarantee Trustee to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Securities Guarantee Trustee" means a successor
Preferred Securities Guarantee Trustee possessing the qualifications to act as
Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means, collectively, the Common Securities and
the Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
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(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Securities Guarantee
Trustee (unless the Preferred Securities Guarantee Trustee is otherwise the
registrar of the Preferred Securities) with a list, in such form as the
Preferred Securities Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Preferred Securities ("List of Holders"), (i)
within 14 days after each record date for payment of Distributions, as of such
record date and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Preferred Securities
Guarantee Trustee, provided that the Guarantor shall not be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Preferred Securities Guarantee Trustee
by the Guarantor. The Preferred Securities Guarantee Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Preferred Securities Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after September 1 of each year, commencing September
1, _____, the Preferred Securities Guarantee Trustee shall provide
to the Holders of the Preferred Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Preferred Securities
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Preferred Securities Guarantee Trustee
is for informational purposes only and the Preferred Securities Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Guarantor's compliance with any of its covenants
hereunder (as to which the Preferred Securities Guarantee Trustee is entitled to
rely exclusively on Officers' Certificates).
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SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Securities Guarantee Trustee shall, within 90 days
after the occurrence of a default with respect to this Preferred Securities
Guarantee, mail by first class postage prepaid, to all Holders of the Preferred
Securities, notices of all defaults actually known to a Responsible Officer of
the Preferred Securities Guarantee Trustee, unless such defaults have been cured
before the giving of such notice, provided, that, except in the case of default
in the payment of any Guarantee Payment, the Preferred Securities Guarantee
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Preferred Securities Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Preferred Securities.
(b) The Preferred Securities Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default unless the Preferred Securities
Guarantee Trustee shall have received written notice, or a Responsible Officer
of the Preferred Securities Guarantee Trustee shall have obtained actual
knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
The Indenture shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the
Preferred Securities Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Preferred Securities Guarantee Trustee shall not
transfer this Preferred Securities Guarantee to any Person except a Holder of
Preferred Securities exercising his or her rights pursuant to Section 5.4(b) or
to a Successor Preferred Securities Guarantee Trustee on acceptance by such
Successor Preferred Securities Guarantee Trustee of its appointment to act as
Successor Preferred Securities Guarantee Trustee. The right, title and interest
of the Preferred Securities Guarantee Trustee shall automatically vest in any
Successor Preferred Securities Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Preferred Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Preferred Securities Guarantee Trustee has occurred and is continuing,
the Preferred Securities Guarantee Trustee shall enforce this Preferred
Securities Guarantee for the benefit of the Holders of the Preferred
Securities. In such event, any moneys collected shall first be paid to the
Preferred Securities Guarantee Trustee for amounts due under Section 8.3 and
then to the Holders of the Preferred Securities.
(c) The Preferred Securities Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities Guarantee, and no implied
covenants shall be read into this Preferred Securities Guarantee against the
Preferred Securities Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is actually
known to a Responsible Officer of the Preferred Securities Guarantee Trustee,
the Preferred Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Preferred Securities Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Securities Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Securities
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred
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Securities Guarantee, and the Preferred Securities Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants or obligations shall
be read into this Preferred Securities Guarantee against the
Preferred Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Securities Guarantee Trustee, the Preferred Securities Guarantee
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 Preferred Securities
Guarantee Trustee and conforming to the requirements of this
Preferred Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred Securities
Guarantee Trustee, the Preferred Securities Guarantee Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Preferred Securities Guarantee
(but shall not be required to confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the Preferred Securities Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of
the Preferred Securities Guarantee Trustee, unless it shall be proved that
the Preferred Securities Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Preferred Securities Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a Majority in
liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Securities Guarantee Trustee, or exercising any trust or
power conferred upon the Preferred Securities Guarantee Trustee under this
Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Securities Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers, if the Preferred Securities Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably satisfactory to
the Preferred Securities Guarantee Trustee, against such risk or liability
is not reasonably assured to it.
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SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Securities Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting,
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Securities Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Preferred Securities Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) the Preferred Securities Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Preferred Securities Guarantee
Trustee shall have the right at any time to seek instructions concerning
the administration of this Preferred Securities Guarantee from any court
of competent jurisdiction;
(v) the Preferred Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Preferred Securities
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Preferred Securities Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Preferred
Securities Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Preferred Securities Guarantee Trustee; provided that, nothing contained
in this Section 3.2(a)(v) shall be taken to relieve the Preferred
Securities Guarantee Trustee, upon the occurrence of an Event of Default,
of its obligation to exercise the rights and powers vested in it by the
terms of this Preferred Securities Guarantee;
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(vi) the Preferred Securities Guarantee Trustee shall not be bound
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Preferred Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(vii) the Preferred Securities Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Preferred Securities Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(viii) any action taken by the Preferred Securities Guarantee
Trustee or its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Securities Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Preferred Securities Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced by the
Preferred Securities Guarantee Trustee's or its agent's taking such
action;
(ix) whenever in the administration of this Preferred Securities
Guarantee the Preferred Securities Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Preferred Securities
Guarantee Trustee (A) may request instructions from the Holders of a
Majority in liquidation amount of the Preferred Securities, (B) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (C) shall be protected in
conclusively relying on or acting in accordance with such instructions;
and
(x) the Preferred Securities Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good
faith, without negligence, and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Preferred Securities Guarantee
Trustee shall be construed to be a duty.
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SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee
The recitals contained in this Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Preferred Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Preferred Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Securities Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Preferred Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Preferred Securities
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c) If the Preferred Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Securities Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
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SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee
(a) Subject to Section 4.2(b), the Preferred Securities Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during the occurrence and continuance of an Event of Default.
(b) The Preferred Securities Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor.
(c) The Preferred Securities Guarantee Trustee shall hold office
until a Successor Preferred Securities Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Securities
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Securities
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Preferred Securities Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Preferred Securities Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Securities Guarantee Trustee.
(d) If no Successor Preferred Securities Guarantee Trustee shall
have been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery of an instrument of removal or resignation, the
Preferred Securities Guarantee Trustee resigning or being removed may petition
any court of competent jurisdiction for appointment of a Successor Preferred
Securities Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Preferred Securities
Guarantee Trustee.
(e) No Preferred Securities Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Preferred Securities Guarantee
Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts due to the Preferred Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders. The Guarantor will honor all
obligations, if any, relating to the conversion of the Preferred Securities into
securities of the Guarantor as set forth in the Agreement and the Indenture.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders
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pursuant to the terms of the Preferred Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor;
it being the intent of this Section 5.3 that the obligations of the Guarantor
with respect to the Guarantee Payments shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Securities Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Securities Guarantee Trustee under
this Preferred Securities Guarantee.
(b) If the Preferred Securities Guarantee Trustee fails to enforce
this Preferred Securities Guarantee, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
rights of such Holder under this Preferred Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Preferred Securities
Guarantee Trustee or any other person or entity. The Guarantor waives any right
or remedy to require that any action be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
If the Guarantor has failed to make a required Guarantee Payment, a
Holder of Preferred Securities may directly institute a proceeding against the
Guarantor for enforcement of this Preferred Securities Guarantee for such
Guarantee Payment.
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SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, the
Guarantor shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Guarantor's capital stock (which includes common and preferred stock) or
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Guarantor (including any Other
Debentures) that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor
(including Other Guarantees) if such guarantee ranks pari passu or junior in
right of payment to the Debentures (other than (a) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, common stock of the Guarantor, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the
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future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Preferred Securities Guarantee, (d) as a result of a
reclassification of the Guarantor's capital stock or the exchange or the
conversion of one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock, (e) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, and (f) purchases of common stock related to the issuance of common
stock or rights under any of the Guarantor's benefit plans for its directors,
officers or employees or any of the Guarantor's dividend reinvestment plans) if
at such time (i) there shall have occurred any event of which the Guarantor has
actual knowledge that is, or with the giving of notice or the lapse of time, or
both, would be an Event of Default, (ii) the Guarantor shall be in default with
respect to its payment obligations under this Preferred Securities Guarantee or
(iii) the Guarantor shall have given notice of its election of the exercise of
its right to extend the interest payment period pursuant to Section 4.01(b) of
the Indenture and shall not have rescinded such notice, and any such extension
shall have commenced and be continuing.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor except any liabilities
(including the Other Guarantees, the Common Securities Guarantee and the Other
Common Securities Guarantees) that may be pari passu or junior expressly by
their terms, and (ii) senior to the Guarantor's capital stock now or hereafter
issued by the Guarantor, if any, and with any guarantee now or hereafter entered
into by the Guarantor in respect of any preferred or preference stock of any
Affiliate of the Guarantor. The foregoing subordination shall not apply to
amounts payable under Article VIII.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (i)
[conversion of the Preferred Securities into securities of an entity other than
the Issuer, (ii)] full payment of the Redemption Price of all Preferred
Securities, or (ii) [iii] liquidation of the Issuer, the full payment of the
amounts payable in accordance with the Agreement or the distribution of the
Debentures to the Holders of all of the Preferred Securities. Notwithstanding
the foregoing, this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of
Preferred Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
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ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage, liability, expense or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that this provision shall not be deemed to modify Section 3.1(d).
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Preferred Securities Guarantee or the resignation or removal of the Preferred
Securities Guarantee Trustee.
The Preferred Securities Guarantee Trustee will not claim or exact
any lien or charge on any Guarantee Payments as a result of any amount due to it
under this Preferred Securities Guarantee.
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SECTION 8.3 Compensation
The Guarantor agrees:
(a) to pay to the Preferred Securities Guarantee Trustee from time
to time such compensation as shall be agreed in writing between the Company and
the Preferred Securities Guarantee Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) to reimburse the Preferred Securities Guarantee Trustee upon its
request for reasonable expenses, disbursements and advances incurred or made by
the Preferred Securities Guarantee Trustee in accordance with any provision of
this Preferred Securities Guarantee (including the reasonable compensation and
the expenses and advances of its agents and counsel), except any such expense or
advance as may be attributable to its negligence or bad faith.
Subject to Section 8.2, the Preferred Securities Guarantee Trustee
shall have a claim and lien prior to the Holders as to all property and funds
held by it hereunder for any amount owing to it or any predecessor Preferred
Securities Guarantee Trustee for fees and expenses pursuant to this Article.
ARTICLE VIII
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
Except in connection with any merger or consolidation of the
Guarantor with or into another entity permitted by the Indenture or any sale,
transfer or lease of the Guarantor's assets to another entity permitted by the
Indenture, the Guarantor may not assign its rights or delegate its obligations
under this Preferred Securities Guarantee.
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SECTION 9.2 Amendments
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no approval of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of a Majority in liquidation amount of the
outstanding Preferred Securities (including the amount payable on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined). The provisions of Section
12.2 of the Agreement with respect to meetings of Holders of the Securities
apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Administrative Trustee at
the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders of the Common Securities):
Hercules Trust III
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd,
Administrative Trustee
Telecopy: (302) 594-7252
(b) If given to the Preferred Securities Guarantee Trustee, at the
Preferred Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Preferred Securities Guarantee Trustee may give notice
of to the Holders of the Preferred Securities):
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
Telecopy: (215) 972-8372
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(c) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Vice President and Treasurer, and
Corporate Secretary
Telecopy: (302) 594-5210
(d) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF EXCEPT THAT THE RIGHTS,
LIMITATIONS OF RIGHTS, OBLIGATIONS, DUTIES AND IMMUNITIES OF THE PREFERRED
SECURITIES GUARANTEE TRUSTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
HERCULES INCORPORATED,
as Guarantor
By:_________________________________
Name:
Title:
The Chase Manhattan Bank, as Preferred
Securities Guarantee Trustee
By:_________________________________
Name:
Title:
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PREFERRED SECURITIES GUARANTEE AGREEMENT
HERCULES INCORPORATED
Dated as of ___________, ____
<PAGE> 2
TABLE OF CONTENTS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation ................................ 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ............................... 5
SECTION 2.2 Lists of Holders of Securities ................................. 6
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee .......... 6
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee ..... 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent ............... 7
SECTION 2.6 Events of Default; Waiver ...................................... 7
SECTION 2.7 Event of Default; Notice ....................................... 7
SECTION 2.8 Conflicting Interests .......................................... 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee 8
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee ....... 10
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee....................................................... 12
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility ............ 12
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee............................................... 13
</TABLE>
i
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<TABLE>
<S> <C>
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee ....................................................... 14
SECTION 5.2 Waiver of Notice and Demand ..................................... 14
SECTION 5.3 Obligations Not Affected ........................................ 14
SECTION 5.4 Rights of Holders ............................................... 15
SECTION 5.5 Guarantee of Payment ............................................ 16
SECTION 5.6 Subrogation ..................................................... 16
SECTION 5.7 Independent Obligations ......................................... 16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions ...................................... 16
SECTION 6.2 Ranking ......................................................... 17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination ..................................................... 17
ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation ..................................................... 18
SECTION 8.2 Indemnification ................................................. 18
SECTION 8.3 Compensation .................................................... 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns .......................................... 19
SECTION 9.2 Amendments ...................................................... 20
SECTION 9.3 Notices ......................................................... 20
SECTION 9.4 Benefit ......................................................... 21
SECTION 9.5 Governing Law ................................................... 21
</TABLE>
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PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Preferred
Securities Guarantee"), dated as of ___________, ____, is executed and delivered
by Hercules Incorporated, a Delaware corporation (the "Guarantor"), and The
Chase Manhattan Bank, a New York banking corporation, as trustee (the "Preferred
Securities Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Hercules Trust III, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Agreement"), dated as of ___________, ____, among the trustees of the Issuer,
the Guarantor, as sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing on the
date hereof _______ preferred securities, having an aggregate liquidation amount
of $___________, such preferred securities being designated the
___________________ Preferred Securities (collectively, the "Preferred
Securities").
WHEREAS, as an incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") with substantially identical terms
to this Preferred Securities Guarantee, for the benefit of the holders of the
Common Securities (as defined herein), except that if an event of default under
the Agreement has occurred and is continuing, the rights of holders of the
Common Securities to receive Guarantee Payments under the Common Securities
Guarantee are subordinated, to the extent and in the manner set forth in the
Common Securities Guarantee, to the rights of holders of Preferred Securities to
receive Guarantee Payments under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby acknowledges shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Agreement as at the date of execution of this
Preferred Securities Guarantee have the same meaning when used in
this Preferred Securities Guarantee unless otherwise defined in this
Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee has
the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee, unless otherwise
defined in this Preferred Securities Guarantee or unless the context
otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday or a Sunday, or a
day on which banking institutions in The City of New York or Wilmington,
Delaware are authorized or required by law, regulation or executive order to
close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
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"Corporate Trust Office" means the office of the Preferred
Securities Guarantee Trustee for the conduct of corporate trust business, at
which matters related to this Preferred Securities Guarantee Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at One Liberty Place, 52nd Floor, 1650
Market Street, Philadelphia, Pennsylvania 19103.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt securities
of the Guarantor designated the _______________ Junior Subordinated Deferrable
Interest Debentures due ___________, held by the Property Trustee (as defined in
the Agreement) of the Issuer.
"Event of Default" means (i) a default by the Guarantor in respect
of any of its payment or other obligations under this Preferred Securities
Guarantee or (ii) if applicable, the failure of the Guarantor to deliver the
required securities upon an appropriate election by any Holder or Preferred
Securities to convert such Preferred Securities into such securities in
accordance with their terms.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accumulated and unpaid Distributions (as
defined in the Agreement) that are required to be paid on such Preferred
Securities, to the extent the Issuer has funds legally available therefor at
such time, (ii) the redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the "Redemption Price"), to the extent
the Issuer has funds legally available therefor at such time, with respect to
any Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution and liquidation of the Issuer (other than
in connection with the distribution of the Debentures to holders of the
Preferred Securities or the redemption[, conversion or exchange] of the
Preferred Securities as provided in the Agreement), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
on the Preferred Securities to the date of payment, to the extent the Issuer has
funds legally available therefor at such time, and (b) the amount of assets of
the Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution"). If an event of default
under the Agreement has occurred and is continuing, no Guarantee Payments under
the Common Securities Guarantee with respect to the Common Securities or any
guarantee payment under any Other Common Securities Guarantees shall be made
until the Holders of Preferred Securities shall be paid in full the Guarantee
Payments to which they are entitled under this Preferred Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
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"Indemnified Person" means the Preferred Securities Guarantee
Trustee, any Affiliate of the Preferred Securities Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Preferred Securities
Guarantee Trustee.
"Indenture" means the Indenture dated as of ___________, _____,
between the Hercules Incorporated, as issuer (the "Debenture Issuer"), and The
Chase Manhattan Bank, as trustee, relating to the Junior Subordinated
Debentures, pursuant to which the Debentures are to be issued to the Property
Trustee of the Issuer.
"Majority in liquidation amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the aggregate
liquidation amount (including the amount payable on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Guarantor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning as
"Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures issued
by the Guarantor from time to time and sold to trusts established by the
Guarantor, in each case similar to the Issuer.
"Other Guarantees" means all guarantees issued by the Guarantor with
respect to preferred securities similar to the Preferred Securities issued by
other trusts established by the Guarantor, in each case similar to the Issuer.
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<PAGE> 8
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee Trustee" means The Chase Manhattan
Bank, a New York banking corporation, until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Preferred Securities Guarantee and thereafter means each
such Successor Preferred Securities Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Securities Guarantee Trustee, any officer within the Corporate Trust Office of
the Preferred Securities Guarantee Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, any assistant treasurer or
other officer of the Corporate Trust Office of the Preferred Securities
Guarantee Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Preferred Securities
Guarantee Trustee to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Securities Guarantee Trustee" means a successor
Preferred Securities Guarantee Trustee possessing the qualifications to act as
Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means, collectively, the Common Securities and
the Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a)This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
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(b)If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities
(a)The Guarantor shall provide the Preferred Securities Guarantee
Trustee (unless the Preferred Securities Guarantee Trustee is otherwise the
registrar of the Preferred Securities) with a list, in such form as the
Preferred Securities Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Preferred Securities ("List of Holders"), (i)
within 14 days after each record date for payment of Distributions, as of such
record date and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Preferred Securities
Guarantee Trustee, provided that the Guarantor shall not be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Preferred Securities Guarantee Trustee
by the Guarantor. The Preferred Securities Guarantee Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b)The Preferred Securities Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after September 1 of each year, commencing September
1, ____, the Preferred Securities Guarantee Trustee shall provide to the Holders
of the Preferred Securities such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Preferred Securities Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Preferred Securities Guarantee Trustee
is for informational purposes only and the Preferred Securities Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Guarantor's compliance with any of its covenants
hereunder (as to which the Preferred Securities Guarantee Trustee is entitled to
rely exclusively on Officers' Certificates).
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SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a)The Preferred Securities Guarantee Trustee shall, within 90 days
after the occurrence of a default with respect to this Preferred Securities
Guarantee, mail by first class postage prepaid, to all Holders of the Preferred
Securities, notices of all defaults actually known to a Responsible Officer of
the Preferred Securities Guarantee Trustee, unless such defaults have been cured
before the giving of such notice, provided, that, except in the case of default
in the payment of any Guarantee Payment, the Preferred Securities Guarantee
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Preferred Securities Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Preferred Securities.
(b)The Preferred Securities Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Preferred Securities Guarantee
Trustee shall have received written notice, or a Responsible Officer of the
Preferred Securities Guarantee Trustee shall have obtained actual knowledge, of
such Event of Default.
SECTION 2.8 Conflicting Interests
The Indenture shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee
(a)This Preferred Securities Guarantee shall be held by the
Preferred Securities Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Preferred Securities Guarantee Trustee shall not
transfer this Preferred Securities Guarantee to any Person except a Holder of
Preferred Securities exercising his or her rights pursuant to Section 5.4(b) or
to a Successor Preferred Securities Guarantee Trustee on acceptance by such
Successor Preferred Securities Guarantee Trustee of its appointment to act as
Successor Preferred Securities Guarantee Trustee. The right, title and interest
of the Preferred Securities Guarantee Trustee shall automatically vest in any
Successor Preferred Securities Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Preferred Securities Guarantee Trustee.
(b)If an Event of Default actually known to a Responsible Officer of
the Preferred Securities Guarantee Trustee has occurred and is continuing, the
Preferred Securities Guarantee Trustee shall enforce this Preferred Securities
Guarantee for the benefit of the Holders of the Preferred Securities. In such
event, any moneys collected shall first be paid to the Preferred Securities
Guarantee Trustee for amounts due under Section 8.3 and then to the Holders of
the Preferred Securities.
(c)The Preferred Securities Guarantee Trustee, before the occurrence
of any Event of Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Preferred Securities Guarantee, and no implied covenants shall
be read into this Preferred Securities Guarantee against the Preferred
Securities Guarantee Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Preferred Securities Guarantee, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d)No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Securities Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Securities
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred
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Securities Guarantee, and the Preferred Securities Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants or obligations shall
be read into this Preferred Securities Guarantee against the
Preferred Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Securities Guarantee Trustee, the Preferred Securities Guarantee
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 Preferred Securities
Guarantee Trustee and conforming to the requirements of this
Preferred Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred Securities
Guarantee Trustee, the Preferred Securities Guarantee Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Preferred Securities Guarantee
(but shall not be required to confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the Preferred Securities Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of
the Preferred Securities Guarantee Trustee, unless it shall be proved that
the Preferred Securities Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Preferred Securities Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a Majority in
liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Securities Guarantee Trustee, or exercising any trust or
power conferred upon the Preferred Securities Guarantee Trustee under this
Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Securities Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers, if the Preferred Securities Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably satisfactory to
the Preferred Securities Guarantee Trustee, against such risk or liability
is not reasonably assured to it.
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SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a)Subject to the provisions of Section 3.1:
(i) the Preferred Securities Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting,
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Securities Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Preferred Securities Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) the Preferred Securities Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Preferred Securities Guarantee
Trustee shall have the right at any time to seek instructions concerning
the administration of this Preferred Securities Guarantee from any court
of competent jurisdiction;
(v) the Preferred Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Preferred Securities
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Preferred Securities Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Preferred
Securities Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Preferred Securities Guarantee Trustee; provided that, nothing contained
in this Section 3.2(a)(v) shall be taken to relieve the Preferred
Securities Guarantee Trustee, upon the occurrence of an Event of Default,
of its obligation to exercise the rights and powers vested in it by the
terms of this Preferred Securities Guarantee;
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(vi) the Preferred Securities Guarantee Trustee shall not be bound
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Preferred Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(vii) the Preferred Securities Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Preferred Securities Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(viii) any action taken by the Preferred Securities Guarantee
Trustee or its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Securities Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Preferred Securities Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced by the
Preferred Securities Guarantee Trustee's or its agent's taking such
action;
(ix) whenever in the administration of this Preferred Securities
Guarantee the Preferred Securities Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Preferred Securities
Guarantee Trustee (A) may request instructions from the Holders of a
Majority in liquidation amount of the Preferred Securities, (B) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (C) shall be protected in
conclusively relying on or acting in accordance with such instructions;
and
(x) the Preferred Securities Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good
faith, without negligence, and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Preferred Securities Guarantee.
(b)No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Preferred Securities Guarantee
Trustee shall be construed to be a duty.
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SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee
The recitals contained in this Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Preferred Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Preferred Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility
(a)There shall at all times be a Preferred Securities Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b)If at any time the Preferred Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Preferred Securities
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c)If the Preferred Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Securities Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
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SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee
(a)Subject to Section 4.2(b), the Preferred Securities Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during the occurrence and continuance of an Event of Default.
(b)The Preferred Securities Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor.
(c)The Preferred Securities Guarantee Trustee shall hold office
until a Successor Preferred Securities Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Securities
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Securities
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Preferred Securities Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Preferred Securities Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Securities Guarantee Trustee.
(d)If no Successor Preferred Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the Preferred
Securities Guarantee Trustee resigning or being removed may petition any court
of competent jurisdiction for appointment of a Successor Preferred Securities
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Preferred Securities Guarantee
Trustee.
(e)No Preferred Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Preferred Securities Guarantee
Trustee.
(f)Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts due to the Preferred Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders. The Guarantor will honor all
obligations, if any, relating to the conversion of the Preferred Securities into
securities of the Guarantor as set forth in the Agreement and the Indenture.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a)the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b)the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures permitted by the Indenture);
(c)any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders
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pursuant to the terms of the Preferred Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
(d)the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e)any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f)the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g)any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor;
it being the intent of this Section 5.3 that the obligations of the Guarantor
with respect to the Guarantee Payments shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders
(a)The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Securities Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Securities Guarantee Trustee under
this Preferred Securities Guarantee.
(b)If the Preferred Securities Guarantee Trustee fails to enforce
this Preferred Securities Guarantee, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
rights of such Holder under this Preferred Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Preferred Securities
Guarantee Trustee or any other person or entity. The Guarantor waives any right
or remedy to require that any action be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
If the Guarantor has failed to make a required Guarantee Payment, a
Holder of Preferred Securities may directly institute a proceeding against the
Guarantor for enforcement of this Preferred Securities Guarantee for such
Guarantee Payment.
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SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, the
Guarantor shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Guarantor's capital stock (which includes common and preferred stock) or
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Guarantor (including any Other
Debentures) that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor
(including Other Guarantees) if such guarantee ranks pari passu or junior in
right of payment to the Debentures (other than (a) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, common stock of the Guarantor, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the
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future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Preferred Securities Guarantee, (d) as a result of a
reclassification of the Guarantor's capital stock or the exchange or the
conversion of one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock, (e) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, and (f) purchases of common stock related to the issuance of common
stock or rights under any of the Guarantor's benefit plans for its directors,
officers or employees or any of the Guarantor's dividend reinvestment plans) if
at such time (i) there shall have occurred any event of which the Guarantor has
actual knowledge that is, or with the giving of notice or the lapse of time, or
both, would be an Event of Default, (ii) the Guarantor shall be in default with
respect to its payment obligations under this Preferred Securities Guarantee or
(iii) the Guarantor shall have given notice of its election of the exercise of
its right to extend the interest payment period pursuant to Section 4.01(b) of
the Indenture and shall not have rescinded such notice, and any such extension
shall have commenced and be continuing.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor except any liabilities
(including the Other Guarantees, the Common Securities Guarantee and the Other
Common Securities Guarantees) that may be pari passu or junior expressly by
their terms, and (ii) senior to the Guarantor's capital stock now or hereafter
issued by the Guarantor, if any, and with any guarantee now or hereafter entered
into by the Guarantor in respect of any preferred or preference stock of any
Affiliate of the Guarantor. The foregoing subordination shall not apply to
amounts payable under Article VIII.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (i)
[conversion of the Preferred Securities into securities of an entity other than
the Issuer, (ii)] full payment of the Redemption Price of all Preferred
Securities, or (ii) [iii] liquidation of the Issuer, the full payment of the
amounts payable in accordance with the Agreement or the distribution of the
Debentures to the Holders of all of the Preferred Securities. Notwithstanding
the foregoing, this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of
Preferred Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
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ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation
(a)No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except that
this provision shall not be deemed to modify Section 3.1(d).
(b)An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Preferred Securities Guarantee or the resignation or removal of the Preferred
Securities Guarantee Trustee.
The Preferred Securities Guarantee Trustee will not claim or exact
any lien or charge on any Guarantee Payments as a result of any amount due to it
under this Preferred Securities Guarantee.
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SECTION 8.3 Compensation
The Guarantor agrees:
(a)to pay to the Preferred Securities Guarantee Trustee from time to
time such compensation as shall be agreed in writing between the Company and the
Preferred Securities Guarantee Trustee for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust); and
(b)to reimburse the Preferred Securities Guarantee Trustee upon its
request for reasonable expenses, disbursements and advances incurred or made by
the Preferred Securities Guarantee Trustee in accordance with any provision of
this Preferred Securities Guarantee (including the reasonable compensation and
the expenses and advances of its agents and counsel), except any such expense or
advance as may be attributable to its negligence or bad faith.
Subject to Section 8.2, the Preferred Securities Guarantee Trustee
shall have a claim and lien prior to the Holders as to all property and funds
held by it hereunder for any amount owing to it or any predecessor Preferred
Securities Guarantee Trustee for fees and expenses pursuant to this Article.
ARTICLE VIII
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
Except in connection with any merger or consolidation of the
Guarantor with or into another entity permitted by the Indenture or any sale,
transfer or lease of the Guarantor's assets to another entity permitted by the
Indenture, the Guarantor may not assign its rights or delegate its obligations
under this Preferred Securities Guarantee.
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SECTION 9.2 Amendments
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no approval of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of a Majority in liquidation amount of the
outstanding Preferred Securities (including the amount payable on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined). The provisions of Section
12.2 of the Agreement with respect to meetings of Holders of the Securities
apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a)If given to the Issuer, in care of the Administrative Trustee at
the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders of the Common Securities):
Hercules Trust IV
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd,
Administrative Trustee
Telecopy: (302) 594-7252
(b)If given to the Preferred Securities Guarantee Trustee, at the
Preferred Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Preferred Securities Guarantee Trustee may give notice
of to the Holders of the Preferred Securities):
The Chase Manhattan Bank
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, Pennsylvania 19103
Attention: Corporate Trust Department
Telecopy: (215) 972-8372
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(c)If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities):
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Vice President and Treasurer, and Corporate
Secretary
Telecopy: (302) 594-5210
(d)If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF EXCEPT THAT THE RIGHTS,
LIMITATIONS OF RIGHTS, OBLIGATIONS, DUTIES AND IMMUNITIES OF THE PREFERRED
SECURITIES GUARANTEE TRUSTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
HERCULES INCORPORATED,
as Guarantor
By:_____________________________________
Name:
Title:
The Chase Manhattan Bank, as Preferred
Securities Guarantee Trustee
By:_____________________________________
Name:
Title:
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<PAGE> 1
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
October 29, 1998
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, DE 19894-0001
Re: Hercules Incorporated - Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel for Hercules Incorporated, a Delaware
corporation ("Hercules"), and are rendering this opinion in connection with the
preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-3 (the "Registration Statement") relating to
the registration under the Act of: (i) unsecured senior debt securities,
unsecured subordinated debt securities, consisting of debentures, notes or other
evidences of indebtedness, and unsecured junior subordinated debentures of
Hercules (the "Debt Securities"), which may be issued pursuant to a Senior Debt
Indenture between Hercules and The Chase Manhattan Bank, as trustee (as amended
or supplemented, the "Senior Debt Indenture"), a Subordinated Debt Indenture
between Hercules and The Chase Manhattan Bank, as trustee (as amended or
supplemented, the "Subordinated Debt Indenture") or a Junior Subordinated
Debenture Indenture between Hercules and The Chase Manhattan Bank, as trustee
(as amended or supplemented, the "Junior Subordinated Debenture Indenture" and,
together with the Senior Debt Indenture and the Subordinated Debt Indenture, the
"Indentures"); (ii) shares of common stock, without par value ($25/48 stated
value), of Hercules (the "Common Stock"); (iii) shares of series preferred
stock, without par value (the "Preferred Stock"), of Hercules, which may be
represented by depositary shares (the "Depositary Shares") evidenced by
depositary receipts (the "Receipts"); (iv) warrants of Hercules to purchase any
of the Debt Securities, Common Stock, Preferred Stock or Depositary Shares (the
"Warrants"); (v) purchase contracts of Hercules ("Purchase Contracts") to
purchase any of the Debt Securities, Common Stock, Preferred Stock, Depositary
Shares, Warrants and Trust Preferred Securities (as defined below)
(collectively, the "Purchase Contract Securities"); (vi) purchase units of
Hercules ("Purchase Units"), each representing ownership of a Purchase Contract
and any of Debt Securities, debt obligations of third parties, including U.S.
Treasury securities, or Trust Preferred Securities securing a holder's
obligation to purchase the applicable Purchase Contract Securities under the
Purchase Contract, and (vii) guarantees (the "Guarantees") of Hercules with
respect to the preferred securities to be issued by Hercules Trust I, Hercules
Trust II, Hercules Trust III and Hercules Trust IV (each a "Trust" and,
collectively, the "Trusts") ("Trust Preferred Securities").
<PAGE> 2
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of the Registration Statement and all exhibits thereto, and
the Indentures. We have also examined such corporate records and other documents
and instruments, made such inquiries of officers and representatives of Hercules
and considered such matters of law as we have deemed appropriate as the basis
for the opinions hereinafter set forth. In delivering this opinion, we have
assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as certified,
photostatic or conformed copies, the authenticity of originals of all such
latter documents and the accuracy and completeness of all records, information
and statements submitted to us by officers and representatives of Hercules.
Based upon and subject to the limitations, qualifications, exceptions
and assumptions set forth herein, we are of the opinion that:
1. Assuming that the Indentures, any Debt Securities and any
supplemental indenture to be entered into in connection with the issuance of
such Debt Securities have been duly authorized, when (i) the Registration
Statement has become effective under the Act, (ii) a supplemental indenture in
respect of the Debt Securities has been duly authorized, executed and delivered,
(iii) the terms of the Debt Securities and of their issuance and sale have been
duly established in accordance with the applicable Indenture and the applicable
supplemental indenture relating to such Debt Securities so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon Hercules and so as to comply with any requirement or
restriction imposed by any court or governmental or regulatory body having
jurisdiction over Hercules, and (iv) the Debt Securities have been duly executed
and authenticated in accordance with the applicable Indenture and the applicable
supplemental indenture relating to such Debt Securities and duly issued and
delivered by Hercules in the manner contemplated in the Registration Statement
and any prospectus supplement relating thereto, the Debt Securities (including
any Debt Securities duly issued (x) upon exchange or conversion of any shares of
Preferred Stock that are exchangeable or convertible into Debt Securities, (y)
upon exercise of any Warrants exercisable for Debt Securities or (z) as part of
Purchase Units) will constitute valid and binding obligations of Hercules,
enforceable in accordance with their terms, subject to (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws now or hereinafter in effect relating to or affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
2. When (i) the Registration Statement has become effective under the
Act, (ii) the shares of Common Stock have been duly and properly authorized for
issuance, and (iii) the shares of Common Stock have been duly issued, sold and
delivered as contemplated in the Registration Statement and any prospectus
supplement relating thereto, the shares of Common Stock (including any Common
Stock duly issued (w) upon the conversion or exchange of any Debt Securities
that are convertible or exchangeable into Common Stock, (x) upon the exchange or
conversion of any shares of Preferred Stock that are exchangeable or convertible
into
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<PAGE> 3
Common Stock, (y) upon the exercise of any Warrants exercisable for Common
Stock, or (z) pursuant to Purchase Contracts), will be legally issued, fully
paid and non-assessable.
3. When (i) the Registration Statement has become effective under the
Act, (ii) the Preferred Stock has been duly and properly authorized for issuance
and a Certificate of Amendment to the Restated Certificate of Incorporation of
the Hercules classifying the Preferred Stock and setting forth the terms thereof
has been filed, and (iii) the shares of Preferred Stock have been duly issued
and paid for in the manner contemplated in the Registration Statement and any
prospectus supplement relating thereto, the shares of Preferred Stock will be
legally issued, fully paid and non-assessable.
4. Assuming that a Deposit Agreement relating to the Depositary Shares
(the "Deposit Agreement") has been duly authorized, when (i) the Registration
Statement has become effective under the Act, (ii) the Deposit Agreement has
been duly executed and delivered, (iii) the terms of the Depositary Shares and
of their issuance and sale have been duly established in conformity with the
Deposit Agreement relating to such Depositary Shares so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon Hercules and so as to comply with any requirement or
restriction imposed by any court or governmental or regulatory body having
jurisdiction over Hercules, (iv) the Preferred Stock has been duly and properly
authorized for issuance and a Certificate of Amendment to the Restated
Certificate of Incorporation of Hercules classifying the Preferred Stock and
setting forth the terms thereof has been duly filed, (v) such shares of
Preferred Stock have been duly issued and paid for in the manner contemplated in
the Registration Statement and any prospectus supplement relating thereto, and
(vi) the Receipts evidencing the Depositary Shares are duly issued against the
deposit of the Preferred Stock in accordance with the Deposit Agreement, such
Depositary Shares will be legally issued, fully paid and non-assessable.
5. Assuming that a Warrant Agreement relating to the Warrants (the
"Warrant Agreement") has been duly authorized, when (i) the Registration
Statement has become effective under the Act, (ii) the Warrant Agreement has
been duly executed and delivered, (iii) the terms of the Warrants and of their
issuance and sale have been duly established in conformity with the Warrant
Agreement relating to such Warrants so as not to violate any applicable law or
result in default under or breach of any agreement or instrument binding upon
Hercules and so as to comply with any requirement or restriction imposed by any
court or governmental or regulatory body having jurisdiction over Hercules, and
(iv) the Warrants have been duly executed and countersigned in accordance with
the Warrant Agreement relating to such Warrants and issued and sold in the form
and in the manner contemplated in the Registration Statement and any prospectus
supplement relating thereto, such Warrants will constitute valid and binding
obligations of Hercules, enforceable in accordance with their terms, subject to
(a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (b) general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
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<PAGE> 4
6. Assuming that a Purchase Contract Agreement relating to the Purchase
Contracts (the "Purchase Contract Agreement") and such Purchase Contracts have
been duly authorized, when (i) the Registration Statement has become effective
under the Act, (ii) the Purchase Contract Agreement has been duly executed and
delivered, (iii) the terms of the Purchase Contracts and of their issuance and
sale have been duly established in conformity with the Purchase Contract
Agreement so as not to violate any applicable law or result in a default under
or breach of any agreement or instrument binding upon Hercules and so as to
comply with any requirement or restriction imposed by any court or governmental
or regulatory body having jurisdiction over Hercules, and (iv) the Purchase
Contracts have been duly executed and issued in accordance with the Purchase
Contract Agreement relating to such Purchase Contracts and issued and sold in
the form and in the manner contemplated in the Registration Statement and any
prospectus supplement relating thereto, such Purchase Contracts will constitute
valid and binding obligations of Hercules, enforceable in accordance with their
terms, subject to (a) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally and (b) general principles of equity
(regardless of whether considered in a proceeding at law or in equity).
7. Assuming that the Purchase Units, a Purchase Contract Agreement
relating to the Purchase Contracts comprising a part of the Purchase Units and
such Purchase Contracts have been duly authorized, when (i) the Registration
Statement has become effective under the Act, (ii) the Purchase Contract
Agreement has been duly executed and delivered, (iii) the terms of the Purchase
Contracts and of their issuance and sale have been duly established in
conformity with the Purchase Contract Agreement so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon Hercules and so as to comply with any requirement or
restriction imposed by any court or governmental or regulatory body having
jurisdiction over Hercules, (iv) the terms of the collateral arrangements
relating to such Purchase Units have been duly established and the agreement(s)
relating thereto has been duly executed and delivered, in each case so as not to
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon Hercules and so as to comply with any
requirement or restriction imposed by any court or governmental or regulatory
body having jurisdiction over Hercules, and the collateral has been deposited
with the collateral agent in accordance with such arrangements, and (v) the
Purchase Contracts have been duly executed and issued in accordance with the
Purchase Contract Agreement relating to such Purchase Contracts, and issued and
sold in the form and in the manner contemplated in the Registration Statement
and any prospectus supplement relating thereto, such Purchase Units will
constitute valid and binding obligations of Hercules, enforceable in accordance
with their terms, subject to (a) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (b) general
principles of equity (regardless of whether considered in a proceeding at law or
in equity).
8. Assuming that the Guarantees have been duly authorized, when (i) the
Registration Statement has become effective under the Act, (ii) the applicable
Guarantee Agreement has been duly executed and delivered so as not to violate
any applicable law or result in a default under or breach of any agreement or
instrument binding upon Hercules and so as to
4
<PAGE> 5
comply with any requirement or restriction imposed by any court or governmental
or regulatory body having jurisdiction over Hercules, and (iii) the Trust
Preferred Securities have been duly issued and delivered by the applicable
Hercules Trust as contemplated by the Registration Statement and any prospectus
supplement relating thereto, the Guarantees will constitute valid and binding
obligations of Hercules, enforceable in accordance with their terms, subject to
(a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
similar laws now or hereinafter in effect relating to or affecting the
enforcement of creditors' rights generally and (b) general principles of equity
(regardless of whether considered in a proceeding at law or in equity).
We express no opinion as to the law of any jurisdiction other than the
federal law of the United States and the law of the State of Delaware.
We hereby consent to the sole use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus included therein. This opinion is not to be used,
circulated, quoted, referred to or relied upon by any other person or for any
other purpose without our prior written consent.
Very truly yours,
/s/ Ballard Spahr Andrews
& Ingersoll, LLP
5
<PAGE> 1
[Letterhead of Richards, Layton & Finger, P.A.]
October 28, 1998
Hercules Trust I
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Re: Hercules Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Hercules
Incorporated, a Delaware corporation (the "Company"), and Hercules Trust I, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 14,
1998 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on September 14, 1998;
(b) The Trust Agreement of the Trust, dated as of September
14, 1998, among the Company, as sponsor, and the trustees of the Trust named
therein;
(c) A form of Amended and Restated Trust Agreement of the
Trust (including Annex I and Exhibits A-1 and A-2 thereto) (the "Trust
Agreement"), to be entered into among the Company, as sponsor, the trustees of
the Trust named therein and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust, attached as an exhibit to the
Registration Statement;
(d) Amendment No. 1 to the Registration Statement on Form S-3
(the "Registration Statement"), including a prospectus (the "Prospectus"),
relating to the Preferred Securities of the Trust representing undivided
beneficial interests in the assets of the Trust (each,
<PAGE> 2
Hercules Trust I
October 28, 1998
Page 2
a "Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others with the Securities
and Exchange Commission on or about October 28, 1998; and
(e) A Certificate of Good Standing for the Trust, dated
October 28, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities certificate (substantially in the
form attached as Exhibit A-1 to the Trust Agreement), in accordance with the
Trust Agreement, and as described in the Registration Statement, and (vii) that
the Preferred Securities are issued to the Preferred Security Holders in
accordance with the Trust Agreement, and as
<PAGE> 3
Hercules Trust I
October 28, 1998
Page 3
described in the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
To the extent that Section 14.2 of the Trust Agreement
provides that the Trust Agreement is governed by laws other than the laws of the
State of Delaware, we express no opinion concerning Section 14.2 of the Trust
Agreement or the effect of Section 14.2 of the Trust Agreement on the Trust
Agreement.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
<PAGE> 4
Hercules Trust I
October 28, 1998
Page 4
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/DLD
<PAGE> 1
[Letterhead of Richards, Layton & Finger, P.A.]
October 28, 1998
Hercules Trust II
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Re: Hercules Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Hercules
Incorporated, a Delaware corporation (the "Company"), and Hercules Trust II, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 14,
1998 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on September 14, 1998;
(b) The Trust Agreement of the Trust, dated as of September
14, 1998, among the Company, as sponsor, and the trustees of the Trust named
therein;
(c) A form of Amended and Restated Trust Agreement of the
Trust (including Annex I and Exhibits A-1 and A-2 thereto) (the "Trust
Agreement"), to be entered into among the Company, as sponsor, the trustees of
the Trust named therein and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust, attached as an exhibit to the
Registration Statement;
(d) Amendment No. 1 to the Registration Statement on Form S-3
(the "Registration Statement"), including a prospectus (the "Prospectus"),
relating to the Preferred Securities of the Trust representing undivided
beneficial interests in the assets of the Trust (each,
<PAGE> 2
Hercules Trust II
October 28, 1998
Page 2
a "Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others with the Securities
and Exchange Commission on or about October 28, 1998; and
(e) A Certificate of Good Standing for the Trust, dated
October 28, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities certificate (substantially in the
form attached as Exhibit A-1 to the Trust Agreement), in accordance with the
Trust Agreement, and as described in the Registration Statement, and (vii) that
the Preferred Securities are issued to the Preferred Security Holders in
accordance with the Trust Agreement, and as
<PAGE> 3
Hercules Trust II
October 28, 1998
Page 3
described in the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
To the extent that Section 14.2 of the Trust Agreement
provides that the Trust Agreement is governed by laws other than the laws of the
State of Delaware, we express no opinion concerning Section 14.2 of the Trust
Agreement or the effect of Section 14.2 of the Trust Agreement on the Trust
Agreement.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
<PAGE> 4
Hercules Trust II
October 28, 1998
Page 4
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/DLD
<PAGE> 1
[Letterhead of Richards, Layton & Finger, P.A.]
October 28, 1998
Hercules Trust III
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Re: Hercules Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Hercules
Incorporated, a Delaware corporation (the "Company"), and Hercules Trust III, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 14,
1998 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on September 14, 1998;
(b) The Trust Agreement of the Trust, dated as of September
14, 1998, among the Company, as sponsor, and the trustees of the Trust named
therein;
(c) A form of Amended and Restated Trust Agreement of the
Trust (including Annex I and Exhibits A-1 and A-2 thereto) (the "Trust
Agreement"), to be entered into among the Company, as sponsor, the trustees of
the Trust named therein and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust, attached as an exhibit to the
Registration Statement;
(d) Amendment No. 1 to the Registration Statement on Form S-3
(the "Registration Statement"), including a prospectus (the "Prospectus"),
relating to the Preferred Securities of the Trust representing undivided
beneficial interests in the assets of the Trust (each,
<PAGE> 2
Hercules Trust III
October 28, 1998
Page 2
a "Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others with the Securities
and Exchange Commission on or about October 28, 1998; and
(e) A Certificate of Good Standing for the Trust, dated
October 28, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities certificate (substantially in the
form attached as Exhibit A-1 to the Trust Agreement), in accordance with the
Trust Agreement, and as described in the Registration Statement, and (vii) that
the Preferred Securities are issued to the Preferred Security Holders in
accordance with the Trust Agreement, and as
<PAGE> 3
Hercules Trust III
October 28, 1998
Page 3
described in the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
To the extent that Section 14.2 of the Trust Agreement
provides that the Trust Agreement is governed by laws other than the laws of the
State of Delaware, we express no opinion concerning Section 14.2 of the Trust
Agreement or the effect of Section 14.2 of the Trust Agreement on the Trust
Agreement.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
<PAGE> 4
Hercules Trust III
October 28, 1998
Page 4
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/DLD
<PAGE> 1
[Letterhead of Richards, Layton & Finger, P.A.]
October 28, 1998
Hercules Trust IV
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Re: Hercules Trust IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for Hercules
Incorporated, a Delaware corporation (the "Company"), and Hercules Trust IV, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 14,
1998 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on September 14, 1998;
(b) The Trust Agreement of the Trust, dated as of September
14, 1998, among the Company, as sponsor, and the trustees of the Trust named
therein;
(c) A form of Amended and Restated Trust Agreement of the
Trust (including Annex I and Exhibits A-1 and A-2 thereto) (the "Trust
Agreement"), to be entered into among the Company, as sponsor, the trustees of
the Trust named therein and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust, attached as an exhibit to the
Registration Statement;
(d) Amendment No. 1 to the Registration Statement on Form S-3
(the "Registration Statement"), including a prospectus (the "Prospectus"),
relating to the Preferred Securities of the Trust representing undivided
beneficial interests in the assets of the Trust (each,
<PAGE> 2
Hercules Trust IV
October 28, 1998
Page 2
a "Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others with the Securities
and Exchange Commission on or about October 28, 1998; and
(e) A Certificate of Good Standing for the Trust, dated
October 28, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities certificate (substantially in the
form attached as Exhibit A-1 to the Trust Agreement), in accordance with the
Trust Agreement, and as described in the Registration Statement, and (vii) that
the Preferred Securities are issued to the Preferred Security Holders in
accordance with the Trust Agreement, and as
<PAGE> 3
Hercules Trust IV
October 28, 1998
Page 3
described in the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
To the extent that Section 14.2 of the Trust Agreement
provides that the Trust Agreement is governed by laws other than the laws of the
State of Delaware, we express no opinion concerning Section 14.2 of the Trust
Agreement or the effect of Section 14.2 of the Trust Agreement on the Trust
Agreement.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
<PAGE> 4
Hercules Trust IV
October 28, 1998
Page 4
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/DLD
<PAGE> 1
EXHIBIT 12 (S-3)
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED JUNE --------------------------------------------------------------
30, 1998
(UNAUDITED)
1997 1996 1995 1994 1993
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes and $153 $593 $485 $505 $408 $311
effect of changes in accounting
principles
Net adjustment for less than 50% - (15) (18) (10) (1) (1)
owned subsidiaries accounted for
by the equity method
Fixed charges (as calculated below) 37 64 51 46 51 59
Capitalized interest (5) (8) (5) (5) (8) (6)
Amortization of capitalized interest 2 4 6 8 12 12
------- ------ ------ ------ ------ ------
Earnings 187 638 519 544 462 375
======= ====== ====== ====== ====== ======
Fixed Charges:
Interest and debt expense 24 39 35 28 28 36
Adjustment for 50% and > owned 3 7 1 1 2 2
subsidiaries accounted for by the
equity method
Capitalized interest 5 8 5 5 8 6
Rental expense representing interest factor 5 10 10 12 13 15
------ ------ ------ ------ ------ ------
Fixed Charges 37 64 51 46 51 59
====== ====== ====== ====== ====== ======
Ratio of Earnings to Fixed Charges 5X 10X 10X 12X 9X 6X
</TABLE>
<PAGE> 1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in Amendment # 1 of this
registration statement on Form S-3 (No. 333-63423) of our report, which includes
an explanatory paragraph regarding a change in the method of accounting for
costs incurred in connection with an enterprise software installation, dated
February 13, 1998, on our audits of the consolidated financial statements of
Hercules Incorporated and subsidiary companies as of December 31, 1997 and 1996
and for each of the three years in the period ended December 31, 1997, which
report is included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1997. We also consent to the reference to our Firm under the
caption "Experts."
/s/ Pricewaterhouse Coopers LLP
Philadelphia, Pennsylvania
October 28, 1998
<PAGE> 1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 1 to the Registration Statement (Form S-3, No. 333-63423) and related
Prospectus of Hercules Incorporated, Hercules Trust I, Hercules Trust II,
Hercules Trust III, and Hercules Trust IV and to the incorporation by reference
therein of our report dated February 2, 1998, with respect to the consolidated
financial statements of BetzDearborn Inc. included in the Current Report on Form
8-K dated October 15, 1998 of Hercules Incorporated, filed with the Securities
and Exchange Commission.
/s/Ernst & Young LLP
Philadelphia, Pennsylvania
October 26, 1998
<PAGE> 1
------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES INCORPORATED
(Exact name of obligor as specified in its charter)
DELAWARE 51-0023450
(State or other jurisdiction of ( I.R.S. employer identification no.)
incorporation or organization)
HERCULES PLAZA 10281-1334
1313 NORTH MARKET STREET (Zip Code)
WILMINGTON, DELAWARE
(Address of principal executive office)
---------------------------------------------
SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a)Name and address of each examining or supervising authority to which it
is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza,
Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C Street
NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b)Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16.List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and State of Pennsylvania, on the 19th day of October,
1998.
THE CHASE MANHATTAN BANK
By /s/ James D. Heaney
--------------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
-------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES INCORPORATED
(Exact name of obligor as specified in its charter)
DELAWARE 51-0023450
(State or other jurisdiction of ( I.R.S. employer identification no.)
incorporation or organization)
HERCULES PLAZA 10281-1334
1313 NORTH MARKET STREET (Zip Code)
WILMINGTON, DELAWARE
(Address of principal executive offices)
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C
Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and State of Pennsylvania, on the 19th day of October,
1998.
THE CHASE MANHATTAN BANK
By /s/ James D. Heaney
------------------------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES INCORPORATED
(Exact name of obligor as specified in its charter)
DELAWARE 51-0023450
(State or other jurisdiction of ( I.R.S. employer identification no.)
incorporation or organization)
HERCULES PLAZA 10281-1334
1313 NORTH MARKET STREET (Zip Code)
WILMINGTON, DELAWARE
(Address of principal executive offices)
---------------------------------------------
JUNIOR SUBORDINATED DEBENTURES
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a)Name and address of each examining or supervising authority to which it
is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza,
Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C Street
NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b)Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16.List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and State of Pennsylvania, on the 19th day of October,
1998.
THE CHASE MANHATTAN BANK
By /s/James D. Heaney
------------------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
\ ------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES TRUST I
(Exact name of obligor as specified in its certificate of limited partnership)
DELAWARE APPLICATION PENDING
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON , DELAWARE 10281-1334
(Address of principal executive offices) (Zip Code)
PREFERRED SECURITIES OF HERCULES TRUST I
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C Street
NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and the State of Pennsylvania, on the 19th day of
October, 1998.
THE CHASE MANHATTAN BANK
By /s/ James D. Heaney
-------------------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES TRUST II
(Exact name of obligor as specified in its certificate of limited partnership)
DELAWARE APPLICATION PENDING
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON , DELAWARE 10281-1334
(Address of principal executive offices) (Zip Code)
PREFERRED SECURITIES OF HERCULES TRUST II
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C Street
NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and the State of Pennsylvania, on the 19th day of
October, 1998.
THE CHASE MANHATTAN BANK
By /s/ James D. Heaney
-------------------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
---------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES TRUST III
(Exact name of obligor as specified in its certificate of limited partnership)
DELAWARE APPLICATION PENDING
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON , DELAWARE 10281-1334
(Address of principal executive offices) (Zip Code)
PREFERRED SECURITIES OF HERCULES TRUST III
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C Street
NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and the State of Pennsylvania, on the 19th day of
October, 1998.
THE CHASE MANHATTAN BANK
By /s/ James D. Heaney
-------------------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES TRUST IV
(Exact name of obligor as specified in its certificate of limited partnership)
DELAWARE APPLICATION PENDING
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON , DELAWARE 10281-1334
(Address of principal executive offices) (Zip Code)
PREFERRED SECURITIES OF HERCULES TRUST IV
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C Street
NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and the State of Pennsylvania, on the 19th day of
October, 1998.
THE CHASE MANHATTAN BANK
By /s/ James D. Heaney
-------------------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES INCORPORATED
(Exact name of obligor as specified in its charter)
DELAWARE 51-0023450
(State or other jurisdiction of ( I.R.S. employer identification no.)
incorporation or organization)
HERCULES PLAZA 10281-1334
1313 NORTH MARKET STREET (Zip Code)
WILMINGTON, DELAWARE
(Address of principal executive offices)
-----------------------------------------------
GUARANTEE OF PREFERRED SECURITIES OF HERCULES TRUST I BY HERCULES INCORPORATED
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a)Name and address of each examining or supervising authority to which it
is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza,
Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C Street
NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b)Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16.List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and State of Pennsylvania, on the 19th day of October,
1998.
THE CHASE MANHATTAN BANK
By /s/James D. Heaney
----------------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES INCORPORATED
(Exact name of obligor as specified in its charter)
DELAWARE 51-0023450
(State or other jurisdiction of ( I.R.S. employer identification no.)
incorporation or organization)
HERCULES PLAZA 10281-1334
1313 NORTH MARKET STREET (Zip Code)
WILMINGTON, DELAWARE
(Address of principal executive offices)
---------------------
GUARANTEE OF PREFERRED SECURITIES OF HERCULES TRUST II BY HERCULES INCORPORATED
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C
Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10,1996(see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which
is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and the State of Pennsylvania, on the 19th day of
October, 1998.
THE CHASE MANHATTAN BANK
By /s/ James D. Heaney
------------------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
-------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES INCORPORATED
(Exact name of obligor as specified in its charter)
DELAWARE 51-0023450
(State or other jurisdiction of ( I.R.S. employer identification no.)
incorporation or organization)
HERCULES PLAZA 10281-1334
1313 NORTH MARKET STREET (Zip Code)
WILMINGTON, DELAWARE
(Address of principal executive offices)
-----------------------
GUARANTEE OF PREFERRED SECURITIES OF HERCULES TRUST III BY HERCULES INCORPORATED
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C
Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10,1996(see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and State of Pennsylvania, on the 19th day of October,
1998.
THE CHASE MANHATTAN BANK
By /s/James D. Heaney
-------------------------
James D. Heaney, Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
--------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)______
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HERCULES INCORPORATED
(Exact name of obligor as specified in its charter)
DELAWARE 51-0023450
(State or other jurisdiction of ( I.R.S. employer identification no.)
incorporation or organization)
HERCULES PLAZA 10281-1334
1313 NORTH MARKET STREET (Zip Code)
WILMINGTON, DELAWARE
(Address of principal executive office)
-------------------------------
GUARANTEE OF PREFERRED SECURITIES OF HERCULES TRUST IV BY HERCULES INCORPORATED
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C
Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, 550 Seventeenth Street,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10,1996(see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Philadelphia and State of Pennsylvania, on the 19th day of October,
1998.
THE CHASE MANHATTAN BANK
By /s/James D. Heaney
----------------------------------
James D. Heaney, Vice President
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<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned ........................... 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
--------
TOTAL ASSETS ...................................... $302,162
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ......................$ 41,566
Interest-bearing ......................... 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ......................$ 4,109
Interest-bearing ......................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
