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As filed with the Securities and Exchange Commission on May 15, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
__________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
Illinois Central Railroad Company
(Exact name of registrant as specified in its charter)
Delaware 4011 36-2728842
(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Code Number) Identification No.)
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
(312) 755-7500
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Ronald A. Lane
Vice President and General Counsel and Secretary
Illinois Central Railroad Company
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
(312) 755-7500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
__________
Copy to:
John J. McCarthy, Jr. John B. Tehan
Davis Polk & Wardwell Simpson Thacher & Bartlett
450 Lexington Avenue 425 Lexington Avenue
New York, New York 10017 New York, New York 10017
__________
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 registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
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<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Each Class of to be Price Per Offering Registration
Securities to be Registered Registered(1) Security(2) Price(2) Fee
- --------------------------- ------------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
Debt Securities ............ $200,000,000 100% $200,000,000 $68,966
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<FN>
(1) Or, if any debt security registered hereby is issued at an original issue
discount, such greater amount as shall result in aggregate gross
proceeds not in excess of $200,000,000 to the registrant.
(2) Estimated solely for purposes of calculating the registration fee.
</FN>
</TABLE>
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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PROSPECTUS
Illinois Central Railroad Company
Debt Securities
Illinois Central Railroad Company (the "Company" or the "Railroad"), a Delaware
corporation, from time to time may offer its debt securities (the
"Securities"), in one or more series, up to an aggregate principal face amount
of $200,000,000 (or such greater amount, if Securities are issued at an
original issue discount, as shall result in aggregate gross proceeds to the
Company of $200,000,000). The Securities will be unsecured obligations of the
Company, and will be senior Securities (the "Senior Securities"), ranking pari
passu with all existing and future unsecured and unsubordinated indebtedness
of the Company for borrowed money and senior to all future subordinated
indebtedness of the Company, or subordinated Securities (the "Subordinated
Securities"), subordinated as described herein under "Description of the
Securities -- Subordination of Subordinated Securities."
When the Securities of a particular series are offered, a supplement to this
Prospectus will be delivered (the "Prospectus Supplement"), together with this
Prospectus, setting forth the terms of the Securities, including, where
applicable, the specific designation, aggregate principal amount,
denominations, currency of payments, maturity, rate (which may be fixed or
variable) and time of payment of interest, any terms for redemption at the
option of the Company or the holder, any terms for sinking fund payments, the
initial public offering price, the names of, and the principal amounts to be
purchased by, underwriters and the compensation of such underwriters, any
listing of the Securities on a securities exchange and the other terms in
connection with the offering and sale of such Securities. Securities will be
Senior Securities unless the applicable Prospectus Supplement indicates that
they are Subordinated Securities.
The Company may sell the Securities to or through underwriters, and also may
sell the Securities directly to other purchasers or through agents or dealers.
See "Plan of Distribution." Such underwriters, agents or dealers may include
Lehman Brothers, Lehman Brothers Inc., Smith Barney Inc., BA Securities, Inc.,
Chase Securities Inc., Deutsche Morgan Grenfell, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated
or a group of underwriters, agents or dealers represented by firms including
Lehman Brothers, Lehman Brothers Inc., Smith Barney Inc., BA Securities, Inc.,
Chase Securities Inc., Deutsche Morgan Grenfell, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co.
Incorporated.
__________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
May __, 1996
IN CONNECTION WITH THE OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No dealer, salesman or any other person has been authorized to give
any information or to make any representations, other than those contained in
this Prospectus or any Prospectus Supplement, in connection with the offering
contained herein or therein, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company or any underwriter or agent. This Prospectus and any Prospectus
Supplement do not constitute an offer to sell, or a solicitation of an offer
to buy, any securities other than the registered securities to which it
relates or any of such securities in any jurisdiction to any person to whom it
is unlawful to make such offer or solicitation. Neither the delivery of this
Prospectus or any Prospectus Supplement nor any sale made hereunder and
thereunder shall, under any circumstances, create an implication that there
has been no change in the information herein or therein set forth since the
date hereof or thereof or that such information is correct as of any time
subsequent to its date.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission
(the "Commission") a Registration Statement on Form S-3 (which term shall
include all amendments, exhibits and schedules thereto) under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the
Securities. This Prospectus does not contain all the information set forth in
the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission, and to which reference is
hereby made. Statements made in this Prospectus as to the contents of any
document referred to are not necessarily complete. With respect to each such
document filed as an exhibit to the Registration Statement, reference is made
to the exhibit for a more complete description of the matter involved, and
each such statement shall be deemed qualified in its entirety by such
reference. The Registration Statement may be inspected, without charge, at the
public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Copies of
such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C 20549 at prescribed
rates.
The Company is subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith is required to file annual and quarterly reports and
other information with the Commission. Reports and other information filed by
the Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549 or at the Commission's regional offices located at 7 World Trade
Center, Suite 1300, New York, New York 10048; and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
may be obtained at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549. Such
reports and other information can also be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1995, Quarterly Report on Form 10-Q for the quarter ended March 31, 1996
and Current Report on Form 8-K dated May 15, 1996 are incorporated by
reference and made a part of this Prospectus.
All documents filed by the Company with the Commission 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 this offering shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein or contained in
this Prospectus shall be deemed to be supplemented, modified or superseded for
purposes of this Prospectus to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein supplements, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed
to constitute a part of this Prospectus.
The Company undertakes to provide without charge to each person to
whom this Prospectus is delivered, on written or oral request of such person,
a copy (without exhibits) of any and all documents incorporated herein by
reference. Requests for such copies should be directed to Illinois Central
Railroad Company, 455 North Cityfront Plaza Drive, Chicago, Illinois
60611-5504, Attention: Corporate Relations, telephone number (312) 755-7500.
THE COMPANY
Illinois Central Railroad Company and subsidiaries (the "Company" or
the "Railroad"), traces its origin to 1851, when the Railroad was incorporated
as the nation's first land grant railroad. Today, the Railroad operates 2,700
miles of main line track between Chicago and the Gulf of Mexico, primarily
carrying chemicals, coal and paper north, with coal, grain and milled grain
products moving south along its lines. The Railroad is a wholly-owned
subsidiary and a principal asset of Illinois Central Corporation ("IC"). The
principal executive office of the Railroad is located at 455 North Cityfront
Plaza Drive, Chicago, Illinois 60611-5504 and its telephone number is (312)
755-7500.
USE OF PROCEEDS
Unless otherwise indicated in an applicable Prospectus Supplement,
the Company intends to use the net proceeds from the sale of the Securities
for general corporate purposes, such as, the retirement of outstanding
indebtedness and funding the expansion of the Company's intermodal terminal in
Chicago (approximately $20 million). Additionally, proceeds could be used to
fund (via a combination of dividends and intercompany loans) approximately
$100 million of the acquisition cost of CCP Holdings, Inc. IC has agreed to
purchase all the stock of CCP Holdings, Inc., for approximately $125 million
in cash and the assumption of approximately $14 million in net debt and
approximately $18 million of capitalized lease obligations. The cash price is
adjusted for any unscheduled prepayments of long-term debt prior to closing.
Additionally, the actual purchase price is subject to various potential
adjustments for up to one year after the closing date. On April 30, 1996, the
Surface Transportation Board announced they had voted in favor of the
acquisition. Formal written approval was issued May 13, 1996 and is effective
June 13, 1996, after which the transaction can be closed. IC expects the
closing to occur in late June or early July 1996.
CCP Holdings, Inc. principal subsidiaries are the Chicago, Central
and Pacific Railroad ("CCP") and the Cedar River Railroad ("CRR"). These two
railroads comprise a Class II freight system which operates 850 miles of road.
CCP operates from Chicago west to Omaha, Nebraska, with connecting lines to
Cedar Rapids and Sioux City, Iowa. CRR runs north from Waterloo, Iowa to
Albert Lea, Minnesota. CCP Holdings, Inc. 1995 revenues were approximately
$76 million, its operating ratio was approximately 70%, and its stockholders'
equity was approximately $54 million at December 31, 1995. IC will account
for the transaction as a purchase.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the years in the
five-year period ended December 31, 1995, and proforma for 1995, are as
follows:
<TABLE>
<CAPTION>
Years Ended December 31,
----------------------------------------
Proforma
1995 1995 1994 1993 1992 1991
-------- -------- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings
to fixed charges 4.33 5.68 4.75 3.96 2.81 2.26
</TABLE>
For purposes of these computations, earnings before fixed charges
consist of income before income taxes, extraordinary item and cumulative
effect of accounting changes plus fixed charges less capitalized interest.
Fixed charges consist of interest on indebtedness including the amortization
of debt issuance costs, capitalized interest and the portion of
non-capitalized lease expense representative of interest. For the proforma
ratio of earnings to fixed charges, both earnings before fixed charges and
fixed charges have been adjusted to assume the full $200 million was issued in
$50 million increments. Further, the increments were assumed to have terms
and interest rates of 3 years, 5 years, 10 years and 15 years, and 5.92%,
6.25%, 6.93%, and 7.02%, respectively.
DESCRIPTION OF THE SECURITIES
The Senior Securities offered hereby will be issued under the
Indenture dated as of May , 1996 (the "Senior Indenture") between the
Company and The Chase Manhattan Bank, N.A., as Trustee (the "Senior Trustee").
The Subordinated Securities offered hereby will be issued under the Indenture
dated as of May , 1996 (the "Subordinated Indenture" and, together with the
Senior Indenture, the "Indentures") between the Company and The Chase
Manhattan Bank, N.A., as Trustee (the "Subordinated Trustee" and, together
with the Senior Trustee, or either the Subordinated Trustee or the Senior
Trustee, as the context implies, the "Trustee"). The statements herein
relating to the Securities and the Indentures are summaries and are subject to
the detailed provisions of the Indentures. A copy of the form of each
Indenture is filed as an exhibit to the Registration Statement of which this
Prospectus is a part and is available as described under "Available
Information." The following summaries of certain provisions of the Indentures
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indentures, including the
definitions therein of certain capitalized terms used in this Prospectus.
Whenever particular Sections or defined terms of the Indentures are referred
to herein, such Sections or defined terms are incorporated herein by reference.
General
Each Indenture provides for issuance of debentures, notes or other
evidences of indebtedness by the Company ("Securities") in one or more series
in an unlimited amount from time to time. The Securities may be issued in
registered form ("Registered Securities") without coupons or in unregistered
form ("Unregistered Securities") with or without coupons and in either case in
global form.
Registered Securities may be presented for registration of transfer
or exchange at the office or agency of the Company in New York, New York.
Subject to the limitations provided in the applicable Indenture, such services
will be provided without charge, other than any tax or other governmental
charge payable in connection therewith. Unregistered Securities transfer by
delivery (Section 2.7).
The Securities will be unsecured obligations of the Company. The
Senior Securities will rank pari passu with all existing and future unsecured
and unsubordinated indebtedness of the Company. The Subordinated Securities
will be subordinated as hereinafter described under "Subordination of
Subordinated Securities." Neither Indenture limits the incurrence or issuance
of other unsecured debt of the Company. The terms of the Senior Indenture
(but not the Subordinated Indenture) do restrict, however, the ability of the
Company to grant liens on its assets and the assets of Subsidiaries as more
fully described below under "Limitation on Liens." It is anticipated that the
Securities will not be listed on any securities exchange.
Unless otherwise indicated in the applicable Prospectus Supplement,
Securities will be Senior Securities. Reference is made to the Prospectus
Supplement for the following terms of the Securities of each series offered
thereby (to the extent such terms are applicable to such Securities): (1) the
designation of the Securities of the series; (2) any limit upon the aggregate
principal amount of the Securities of the series and any limitation on the
ability of the Company to increase such aggregate principal amount after the
initial issuance of such Securities; (3) any date on which the principal of
the Securities of the series is payable (which date may be fixed or
extendible); (4) any rate (which may be fixed or variable) per annum at which
any Securities of the series shall bear interest, any interest accrual,
payment and record dates and/or any method by which any such rate or date
shall be determined; (5) if other than as provided in the Indenture, any place
where principal of and interest on Securities of the series shall be payable,
where Registered Securities of the series may be surrendered for exchange,
where notices or demands may be served and where notice to Holders may be
published and any time of such payment at any place of payment; (6) any right
of the Company to redeem Securities of the series and any terms thereof; (7)
any obligation of the Company to redeem, purchase or repay Securities of the
series and any terms thereof; (8) if other than denominations of $1,000 and
any integral multiple thereof, the denominations in which Securities of the
series shall be issuable; (9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof; (10) if
other than the coin or currency in which the Securities of the series are
denominated, the coin or currency in which payment of the principal of or
interest on the Securities of the series shall be payable or, if the amount of
any payments of principal of and/or interest on the Securities of the series
may be determined with reference to an index based on a coin or currency other
than that in which the Securities of the series are denominated, the manner in
which such amounts shall be determined; (11) if other than the currency of
the United States of America, the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any) and
interest on the Securities of the series shall be payable, and the manner in
which any such currencies shall be valued against other currencies in which
any other Securities shall be payable; (12) if other than as Registered Global
Securities, whether the Securities of the series or any portion thereof will
be issuable as Registered Securities or Unregistered Securities (with or
without coupons), and any terms of exchange; (13) any obligation of the
Company to pay additional amounts on the Securities of the series in respect
of any tax, assessment or governmental charge withheld or deducted and any
right of the Company to redeem such Securities rather than pay such additional
amounts; (14) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions; (15) if other than the Person acting as Trustee, any
Agent acting with respect to the Securities of the series; (16) any provisions
for the defeasance of any Securities of the series in addition to, in
substitution for or in modification of the provisions described in "Defeasance
and Covenant Defeasance;" (17) the identity of any Depositary for Registered
Global Securities of the series other than The Depository Trust Company and
any circumstances other than those described in "Global Securities" in which
any Person may have the right to obtain Registered Securities in exchange
therefor; (18) any provisions for Events of Default applicable to any
Securities of the series in addition to, in substitution for or in
modification of those described in "Events of Default;" (19) any provision for
covenants applicable to any Securities of the series in addition to, in
substitution for or in modification of those described in "Covenants;" and
(20) any other terms of the Securities of the series not inconsistent with the
Indenture.
Global Securities
The Securities of each series will be issued in the form of one or
more fully registered global Securities (each a "Registered Global Security")
registered in the name of The Depository Trust Company (the "Depositary") or a
nominee thereof, unless otherwise established for the Securities of such
series. Except as described in a Prospectus Supplement hereto, Securities in
definitive form will not be issued. Unless and until a Registered Global
Security is exchanged in whole or in part for Securities in definitive form,
it may not be registered for transfer or exchange except as a whole by the
Depositary for such Registered Global Security to a nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary (Section 2.7).
Upon the issuance of any Registered Global Security, and the deposit
of such Registered Global Security with or on behalf of the Depositary, the
Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Securities represented by such
Registered Global Security to the accounts of institutions ("participants")
entitled thereto that have accounts with the Depositary designated by the
underwriters or their agents engaging in any distribution of the Securities.
Ownership of beneficial interests in a Registered Global Security will be
limited to participants or Persons that may hold interests through
participants. Ownership of beneficial interests by participants in a
Registered Global Security will be shown on, and the transfer of such
beneficial interests will be effected only through, records maintained by the
Depositary or by its nominee. Ownership of beneficial interests in a
Registered Global Security by Persons that hold through participants will be
shown on, and the transfer of such beneficial interests within such
participants will be effected only through, records maintained by such
participants. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of such securities in certificated form.
The foregoing limitations and such laws may impair the ability to own,
transfer or pledge beneficial interests in Registered Global Securities.
So long as the Depositary, or its nominee, is the registered owner
of a Registered Global Security, the Depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Securities
represented by such Registered Global Security for all purposes under the
Indenture. Except as specified below, owners of beneficial interests in a
Registered Global Security will not be entitled to have Securities represented
by such Registered Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Securities in certificated form
and will not be considered the Holders thereof for any purposes under the
Indenture (Section 2.7). Accordingly, each Person owning a beneficial
interest in a Registered Global Security must rely on the procedures of the
Depositary and, if such Person is not a participant, on the procedures of the
participant through which such person owns its interest, to exercise any
rights of a holder of Securities under the Indenture. The Depositary may
grant proxies and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a holder of Securities is entitled to give or take under the
applicable Indenture. The Company understands that, under existing industry
practices, if the Company requests any action of holders of Securities or any
owner of a beneficial interest in a Registered Global Security desires to give
any notice or take any action a holder of Securities is entitled to give or
take under the applicable Indenture, the Depositary would authorize the
participants holding the relevant beneficial interests to give such notice or
take such action, and such participants would authorize the beneficial owners
owning through such participants to give such notice or take such action or
would otherwise act upon the instructions of the beneficial owners owning
through them.
The Depositary or a nominee thereof, as holder of record of a
Registered Global Security, will be entitled to receive payments of principal
and interest for payment to beneficial owners in accordance with customary
procedures established from time to time by the Depositary. On the date
hereof, the agent for the payment, transfer and exchange of the Securities is
the Trustee therefor, acting through its Corporate Trust Office located in the
Borough of Manhattan, The City of New York.
The Company expects that the Depositary, upon receipt of any payment
of principal or interest in respect of a Registered Global Security, will
immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Registered Global Security as shown on the records of the Depositary.
The Company also expects that payments by participants to owners of beneficial
interests in a Registered Global Security held through such participants will
be governed by standing instructions and customary practices, and will be the
responsibility of such participants. None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Registered Global Security, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests (Section 2.14).
If the Depositary is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered or in good standing
under the Exchange Act, and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by the Company within 90 days,
or, if at any time an Event of Default shall have occurred and be continuing
under the Indenture, the Company will issue Securities in definitive
certificated form in exchange for the Registered Global Securities (Section
2.7).
In the event that the book-entry system is discontinued, the
following provisions would apply. The Trustee or any successor registrar
under the applicable Indenture shall keep a register for the Securities in
definitive certificated form at its Corporate Trust Office. Subject to the
further conditions contained in the applicable Indenture, Securities in
definitive certificated form may be transferred or exchanged for one or more
Securities in different authorized denominations upon surrender thereof at the
Corporate Trust Office of the Trustee or any successor Registrar under the
applicable Indenture by the registered Holders or their duly authorized
attorneys. Upon surrender of any Security to be transferred or exchanged, the
Trustee or any successor registrar under the Indenture shall record the
transfer or exchange in the Security register and the Company shall issue, and
the Trustee shall authenticate and deliver, new Securities in definitive
certificated form appropriately registered and in appropriate authorized
denominations (Section 2.7). The Trustee shall be entitled to treat the
registered Holders of the Securities in definitive certificated form, as their
names appear in the Security register as of the appropriate date, as the
owners of such Securities for all purposes under the applicable Indenture
(Section 2.14). Subject to the further conditions contained in each
Indenture, payments in respect of the Securities in definitive certificated
form will be made at such office or agency of the Company maintained for that
purpose as the Company may designate from time to time, except that, at the
option of the Company, interest payments, if any, on the Securities may be
made (i) by checks mailed to the Persons entitled thereto at their registered
addresses or (ii) by transfer in immediately available funds to an account
maintained by the person entitled thereto as specified by such Person (Section
4.1).
Consolidation, Merger or Sale by the Company
The Company shall not consolidate or merge with any other Person or
sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety in one
transaction or series of transactions to any Person, unless (1) either (a) the
Company shall be the continuing Person or (b) such Person shall be a
corporation organized and validly existing under the laws of the United States
of America or any State thereof or the District of Columbia and shall
expressly assume by a supplemental indenture all of the Company's obligations
under the Securities and under the Indentures; (2) immediately before and
after such transaction or each element of such series, no Default or Event of
Default shall have occurred and be continuing; and (3) giving effect to such
transaction will not cause an event of default under any mortgage, bond,
debenture, note or other instrument or obligation that the Company or any
Subsidiary of the Company is a party to or bound by. Upon any such
consolidation, merger, sale, conveyance, assignment, transfer, lease or other
disposition, the successor corporation formed by such consolidation, or into
which the Company is merged or to which such sale, conveyance, assignment,
transfer, lease or other disposition is made, shall succeed to, and be
substituted for, and may exercise every right and power of the Company under
the Indentures and under the Securities (Sections 5.1 and 5.2).
Events of Default, Notice and Certain Rights on Default
Events of Default with respect to the Securities of any series are
defined in the applicable Indenture as being: (a) failure to pay any
installment of interest on any Security of such series when due and the
continuance of such failure for 30 days; (b) failure to pay the principal of
any Security of such series when due; (c) failure for 60 days after notice to
the Company by the Trustee, or by the Holders of 25% in aggregate principal
amount of the Securities of such series then outstanding, to perform or
observe any other covenant, condition or agreement in the Securities of such
series or in the Indenture; (d) the holders of other indebtedness of the
Company or any Subsidiary shall have declared an aggregate amount in excess of
$20,000,000 thereof to be due and payable prior to the date on which it would
otherwise have become due or payable and such declaration shall not have been
cured, waived, rescinded or annulled or such indebtedness shall not have been
discharged within a period of 30 days; (e) certain events of bankruptcy,
insolvency or reorganization of the Company or a Material Subsidiary; or (f)
any other Event of Default established for the Securities of such series
(Section 6.1).
Each Indenture provides that, if an Event of Default with respect to
the Securities of any series then outstanding thereunder occurs and is
continuing, then, either the Trustee for or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series
then outstanding (each such series treated as a separate class) by notice in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of any such series are
Original Issue Discount Securities, such portion of the principal amount as
may be established for such series) of all Securities of such affected series,
and the interest accrued thereon, if any, to be due and payable immediately,
and upon any such declaration the same shall become immediately due and
payable, except that, if an Event of Default described in clause (e) occurs and
is continuing, then the principal amount (or, if any Securities are Original
Issue Discount Securities, such portion of the principal as may be established
for such series) of all the Securities then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable, without any
notice or other action by any Holder or the Trustee therefor, to the full
extent permitted by applicable law (Section 6.2).
Each Indenture provides that the Trustee thereunder will, within 60
days after the occurrence of a Default with respect to the Securities, give to
the Holders of the Securities notice of all Defaults known to such Trustee,
provided that, except in the case of a Default in payment on the Securities,
the Trustee may withhold such notice if and so long as a Responsible Officer
in good faith determines that withholding such notice is in the interest of
the Holders of the Securities (Section 7.5). "Default" means any event which
is, or after notice or passage of time or both would be, an Event of Default
(Section 1.1).
Each Indenture provides that the holders of a majority in aggregate
principal amount of the then outstanding Securities thereunder, by notice to
the Trustee therefor, may direct the time, method and place of conducting any
proceeding for any remedy available to such Trustee, or exercising any trust
or power conferred on such Trustee (Section 6.5).
Subject to the further conditions contained in the applicable
Indenture, the holders of a majority in aggregate principal amount outstanding
of the Securities of any series may waive, on behalf of the holders of all
Securities of such series, any past Default or Event of Default and its
consequences except a Default or Event of Default (i) in the payment of the
principal of or interest, if any, on any Security of such series or (ii) in
respect of a covenant or provision of such Indenture which cannot under the
terms of the Indenture be amended or modified without the consent of the
holder of each outstanding Security adversely affected thereby (Section 6.4).
The term "Material Subsidiary" means each existing Subsidiary of the
Company and each Subsidiary hereafter acquired or formed by the Company which,
in each case, for the most recent fiscal year of the Company, was the owner of
5% or more of the consolidated assets of the Company and its Subsidiaries
taken as a whole, as set forth on the consolidated financial statements of the
Company for such fiscal year (Section 1.1).
The term "Subsidiary" means, with respect to any Person, any
corporation or other entity of which more than 50% of the shares of Voting
Stock are, at the time directly or indirectly owned by such Person. Unless
otherwise indicated, "Subsidiary" refers only to Subsidiaries of the Company
(Section 1.1).
The term "Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation or other
entity (irrespective of whether or not at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of
any contingency) (Section 1.1).
The applicable Prospectus Supplement will describe any provisions for
Events of Default applicable to the Securities of any series in addition to,
in substitution for, or in modification of, the provisions described above.
Limitation on Liens
The Senior Indenture provides that the Company will not, and will not
permit any Subsidiary to (a) create, issue, assume, incur or guarantee any
notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed ("Debt") if such Debt is secured by a mortgage, pledge or lien
("Lien") upon, or (b) directly or indirectly secure any outstanding Debt by a
Lien upon, any Principal Property of the Company or any Subsidiary, now owned
or hereafter acquired, without effectively providing that the Senior
Securities shall be secured equally and ratably with such Debt, except that
the foregoing restrictions shall not apply to (i) Liens on any Principal
Property acquired after the date of the Senior Indenture to secure or provide
for the payment or refinancing of the purchase price or acquisition cost
thereof, (ii) Liens on any Principal Property to finance improvements thereof
which do not exceed in the aggregate $10,000,000 at any time, (iii) Liens on
any Principal Property of any corporation existing at the time such
corporation becomes a Subsidiary after the date of the Senior Indenture, (iv)
Liens in existence on Principal Property on the date of the Senior Indenture,
(v) Liens to secure Debt of a Subsidiary to the Company or another Subsidiary,
(vi) Liens in favor of governmental bodies to secure advance or progress
payments pursuant to any contract or statute, (vii) pledges or deposits in
connection with workers' compensation, unemployment insurance and other social
security legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements, (viii) Liens for taxes not yet
due or which are being contested in good faith by appropriate proceedings,
(ix) any materialmen's, carriers', mechanics', workmen's, repairmen's or other
like Liens arising in the ordinary course of business in respect of
obligations which are not yet overdue or which are being contested in good
faith by appropriate proceedings, (x) Liens arising in connection with surety,
appeal and similar bonds incidental to the conduct of litigation, (xi) Liens
arising in connection with bid, performance or similar bonds which do not
exceed in the aggregate $5,000,000, (xii) easements, rights of way, general
real estate taxes not yet due and payable, municipal and zoning restrictions,
restrictions on the use of real property and defects and irregularities in the
title hereto and (xiii) any extension, renewal, substitution or replacement
(or successive extensions, renewals, substitutions or replacements), in whole
or in part, of any Lien referred to in the foregoing clauses (i) through
(xii), inclusive, or the Debt secured thereby (Section 4.5(a)).
Notwithstanding the foregoing, the Company and any Subsidiary may,
without equally and ratably securing the Senior Securities, create, issue,
assume, incur or guarantee secured Debt (which would otherwise be subject to
the foregoing Lien restrictions) in an aggregate amount which, together with
all other such secured Debt of the Company and its Subsidiaries (that is, not
including secured Debt of the Company and its Subsidiaries permitted pursuant
to the preceding paragraph) does not at any time exceed 10% of Consolidated
Net Tangible Assets of the Company (Section 4.5(b)).
The term "Principal Property" of any Person means, at any date of
determination, (a) any line of segment of track, together with signaling or
communication systems appurtenant thereto, owned by such Person as of such
date of determination over which at least 10 million gross tons of revenue
freight moved in the calendar year next preceding such date of determination;
(b) all locomotives and freight cars owned by the such Person as of such date
of determination; (c) all freight yards and repair facilities owned by such
Person as of such date of determination; and (d) all real estate related to
the property described in (a), (b) or (c) owned by such Person as of such date
of determination (Section 1.1).
The term "Consolidated Net Tangible Assets" with respect to any
Person means, as at any date of determination, the total amount of assets
(less applicable reserves and other properly deductible items) of such Person
and its Subsidiaries determined on a consolidated basis in conformity with
GAAP and set forth on the most recent consolidated balance sheet of such
Person and its Subsidiaries preceding such date of determination after
deducting therefrom (i) all current liabilities (excluding any thereof which
are by their terms extendible or renewable at the option of the obligor
thereon to a time more than 12 months after such date of determination), (ii)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, and (iii) appropriate adjustments on
account of minority interests of other persons holding stock in the
Subsidiaries, all as determined on a consolidated basis in conformity with
GAAP and set forth on such most recent consolidated balance sheet of such
Person and its Subsidiaries (Section 1.1).
Modification of the Indentures
Each Indenture contains provisions permitting the Company and the
Trustee to enter into one or more supplemental indentures without the consent
of the holders of Securities in order (i) to evidence the succession of
another corporation to the Company and the assumption of the covenants of the
Company by such successor, (ii) to comply with any requirements of the
Commission in connection with the qualification of the Indenture under the
Trust Indenture Act of 1939 as then in effect, (iii) to provide for a
successor Trustee with respect to the Securities of all or any series, (iv) to
establish the forms and terms of the Securities of any series, (v) to provide
for uncertificated or Unregistered Securities, or (vi) to cure any ambiguity
or correct any mistake or to make any change that does not materially
adversely affect the legal rights of any holder of the Securities under such
Indenture (Section 9.1).
Each Indenture also contains provisions permitting the Company and
the Trustee, with the consent of the holders of a majority in aggregate
principal amount of the then outstanding Securities of any series, to execute
supplemental indentures adding any provisions to or changing or eliminating
any of the provisions of the Indenture or any supplemental indenture or
modifying the rights of the holders of such Securities, except that no such
supplemental indenture, or any amendment or waiver, may, without the consent
of the holder of each Security, (i) extend the stated maturity of the
principal of, or any sinking fund obligation or any installment of interest
on, such holder's Security, or reduce the principal amount thereof or the rate
of interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely affect
the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of the
Company or such Holder, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof or the amount thereof provable in bankruptcy, or change
any place of payment where, or the currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the due date
therefor, or change the manner of determining any of the foregoing; (ii)
reduce the percentage in principal amount of outstanding Securities of the
relevant series the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain provisions
of this Indenture or certain Defaults and their consequences provided for in
this Indenture; (iii) waive a Default in the payment of principal of or
interest on any Security of such Holder; (iv) change any obligation of the
Company to maintain an office or agency in the places and for the purposes in
the Indenture provided; or (v) modify any of the foregoing provisions, except
to increase any such percentage or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby (Section 9.2).
Additionally, in the case of the Subordinated Indenture, no supplemental
indenture may adversely affect the rights of any Senior Indebtedness holder to
the benefits of subordination thereunder without such holder's consent. After
a supplemental indenture, amendment or waiver becomes effective, the Company
shall mail a notice to the holders of the Securities affected thereby briefly
describing the supplemental indenture, amendment or waiver (Section 9.2).
Defeasance and Covenant Defeasance
Unless the terms of the Securities of any series provide otherwise,
the Company may elect either (1) to defease and be discharged from any and all
obligations with respect to (a) Securities of any series payable within one
year or (b) other Securities of any series upon certain additional conditions
described below (except as otherwise provided in the applicable Indenture)
("defeasance") or (2) to be released from its obligations with respect to
certain covenants applicable to the Securities of any series ("covenant
defeasance"), upon the deposit with the Trustee, in trust for such purpose, of
money and/or U.S. Government Obligations which through the payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient without reinvestment to pay the principal of and interest on
the Securities and the satisfaction of certain other conditions set forth in
such Indenture. As a condition to defeasance of any Securities of any series
payable later than one year from the time of defeasance, the Company must
deliver to the Trustee an Opinion of Counsel or a ruling of the Internal
Revenue Service to the effect that the holders of the Securities 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 amount
and in the same manner and at the same times as would have been the case if
such defeasance or covenant defeasance had not occurred (Article 8).
The Company may exercise either defeasance option with respect to the
Securities of any series notwithstanding its prior exercise of its covenant
defeasance option with respect thereto. If the Company exercises its
defeasance option, payment of the Securities of any series may not be
accelerated because of a Default or an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities of any
series may not be accelerated by reason of an Event of Default with respect to
the covenants to which such covenant defeasance is applicable. If such
acceleration were to occur by reason of another Event of Default, the
realizable value at the acceleration date of the money and U.S. Government
Obligations in the defeasance trust could be less than the principal and
interest then due on the Securities, in that the required deposit in the
defeasance trust is based upon scheduled cash flow rather than market value,
which will vary depending upon interest rates and other factors. The Company
will, however, remain liable for such payments at the time of the acceleration.
Subordination of Subordinated Securities
The payment of the principal of and interest on the Subordinated
Securities will, to the extent set forth in the Subordinated Indenture, be
subordinate in right of payment to the prior payment in full of all Senior
Indebtedness of the Company (Section 11.2). In certain events of insolvency,
the holders of Senior Indebtedness shall be entitled to receive payment in
full of all principal of, premium, if any, and interest then due on all Senior
Indebtedness before any payment is made on the Subordinated Notes (Section
11.2).
"Senior Indebtedness" of the Company is defined in the Subordinated
Indenture to mean all notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed of the Company, except the Subordinated
Securities and other such evidences subordinated to or subordinated on a
parity with the Subordinated Securities.
Governing Law
The Indentures and the Securities are governed by and construed in
accordance with the laws of the state of New York (Section 10.7).
The Trustee
The Chase Manhattan Bank, N.A., is Trustee under both the Senior
Indenture and the Subordinated Indenture. The Company also maintains banking
and other commercial relationships with the Trustee and its affiliates in the
ordinary course of business.
PLAN OF DISTRIBUTION
The Company may sell all or part of the Securities from time to time
on terms determined at the time such Securities are offered for sale. The
Securities may be sold (i) through underwriters or dealers; (ii) through
agents; (iii) directly to one or more purchasers; or (iv) through a
combination of any such methods of sale. The Prospectus Supplement relating
to the particular series of the Securities offered thereby will set forth the
terms of the offering of such series of the Securities, including the name or
names of any underwriters, dealers or agents, the purchase price of such
Securities, the proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters' or agents' compensation,
any initial public offering price, any discounts or sales agent's commissions
or concessions allowed or reallowed or paid to dealers and any securities
exchanges on which the Securities of such series may be listed.
The distribution of the Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
If underwriters are used in the sale, the 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
public offering price, or at varying prices determined at the time of sale.
The Securities may be offered to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Unless otherwise set forth in the related Prospectus Supplement, the
obligations of the underwriters to purchase Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the Securities of a series 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.
If a dealer is utilized in the sale of the Securities in respect of
which this Prospectus is delivered, the Company will sell such Securities to
the public at varying prices to be determined by such dealer at the time of
resale. In the case of a sale to a dealer, the Company will provide a
Prospectus Supplement stating the name of such dealer, the amount of
Securities purchased and the price paid.
Offers to purchase Securities may be solicited directly by the
Company or by agents designated by the Company from time to time. Any such
agent, which may be deemed to be an underwriter as that term is defined in the
Securities Act, involved in the offer or sale of the Securities in respect of
which this Prospectus is delivered will be named in, and any commissions
payable by the Company to such agent will be set forth in, a Prospectus
Supplement. Unless otherwise indicated in such Prospectus Supplement, any
such agent will be acting on a best efforts basis.
Agents and underwriters may from time to time purchase and sell
Securities in the secondary market, but are not obligated to do so, and there
can be no assurance that there will be a secondary market for the Securities
or liquidity in the secondary market if one develops. From time to time,
agents and underwriters may make a market in the Securities.
Dealers, underwriters or agents may be entitled under agreements
which may be entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the Securities
Act. Such dealers, underwriters or agents may be customers of, engage in
transactions with, or perform services for, the Company in the ordinary course
of business.
The place and time of delivery for the Securities in respect of which
this Prospectus is delivered will be set forth in the accompanying Prospectus
Supplement.
LEGAL MATTERS
Certain matters relating to the Securities will be passed upon for
the Company by Davis Polk & Wardwell, New York, New York. Certain legal
matters will be passed upon for the underwriters, if any, by Simpson Thacher &
Bartlett (a partnership which includes professional corporations), New York,
New York.
EXPERTS
The consolidated financial statements and financial statement
schedule of the Company included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1995, which are incorporated by reference in
this Registration Statement and Prospectus, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report
with respect thereto, which is incorporated by reference herein in reliance
upon the authority of said firm as experts in accounting and auditing in
giving said report.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuances and Distribution
The following table sets forth the fees and expenses payable by the
Illinois Central Railroad Company in connection with the issuance and
distribution of the Securities other than underwriting discounts and
commissions. All of such expenses except the Securities and Exchange
Commission registration fee are estimated:
Securities and Exchange Commission registration fee.........$ 68,966
Trustees' fees and expenses................................. 30,000
Printing and engraving expenses............................. 50,000
Accounting fees and expenses................................ 65,000
Blue Sky fees and expenses.................................. 15,000
Legal fees and expenses..................................... 100,000
Miscellaneous............................................... 20,000
--------
Total.....................................................$383,448
========
Item 15. Indemnification of Directors and Officers
Article Tenth ("Article Tenth") of the Company's Certificate of
Incorporation (the "Certificate") limits the scope of personal liability of
the Company's directors to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. In addition, Article VI
of the By-Laws of the Company ("Article VI") defines the rights of Company
directors and officers to indemnification by the Company in the event of
personal liability or expenses incurred by them as a result of certain
litigation against them. Set forth below are descriptions of Article Tenth
and Article VI.
Elimination of Liability in Certain Circumstances
Article Tenth protects the directors against personal liability for
breaches of their duty of care. Such Article absolves directors of liability
for negligence in the performance of their duties, including gross negligence.
Directors continue to remain liable for breaches of their duty of loyalty to
the Company and its stockholders as well as for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law
and transactions from which a director derived improper personal benefit. In
addition, Article Tenth does not absolve directors liable for unlawful
dividends or stock repurchases or redemptions to which an express negligence
standard presently applies under the Delaware General Corporation Law (the
"Delaware Law"). Also, there may be certain liabilities, such as those under
the federal securities laws or other state or federal laws, which a court may
hold are unaffected by Article Tenth.
Article Tenth further provides that if the Delaware Law is hereafter
amended to further eliminate or limit the liability of directors, then the
liability of a director of the Company shall be eliminated or limited, without
further stockholder action, to the fullest extent permitted by the Delaware
Law as so amended.
Although Article Tenth provides directors with protection against
personal liability for monetary damages for breaches of the duty of care, it
does not eliminate the directors' duty of care. Accordingly, Article Tenth
would have no effect on the availability of equitable remedies such as an
injunction to stop a proposed action or recision of a contract based upon a
director's breach of the duty of care.
Although both directors and officers of the Company are covered by
indemnification provisions under Article VI (see below), Article Tenth limits
liability only with respect to a person acting in the capacity of a director.
Indemnification and Insurance
Article VI provides that the Company shall indemnify and hold
harmless each person who was or is made a party to, or is involved in, any
action, suit or proceeding by reason of the fact that such person is or was a
director or officer of the Company (or was serving at the request of the
Company as a director, officer, employee or agent for another entity,
including service with respect to employee benefit plans of the Company) while
serving in such capacity, to the fullest extent permitted or allowed by
Delaware Law, as in effect (or, to the extent indemnification is broadened, as
it may be amended) against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
to be paid in settlement) reasonably incurred by such person in connection
therewith. Article VI provides that the right conferred thereby shall be a
contract right and shall include the right to be paid by the Company for the
expenses incurred in defending the proceedings specified above, in advance of
their final disposition, provided that, if the Delaware Law so requires, such
payment, in the case of a director or officer in his or her capacity as such,
shall only be made upon delivery to the Company by the indemnified party of an
undertaking to repay all amounts so advanced if it shall ultimately be
determined that the person receiving such payments is not entitled to be
indemnified under such provision or otherwise. Article VI provides that the
Company may, by action of its Board of Directors, provide indemnification to
its employees and agents with the same scope and effect as the foregoing
indemnification of directors and officers.
Article VI provides that persons indemnified thereunder may bring
suit against the Company to recover unpaid amounts claimed thereunder, and
that if such suit is successful, the expense of bringing such a suit shall be
reimbursed by the Company. Article VI further provides that while it is a
defense to such a suit that the person claiming the indemnification has not
met the standard of conduct making indemnification permissible under the
Delaware Law, the burden of proving the defense shall be on the Company and
neither the failure of the Company to have made a determination that
indemnification is proper, nor an actual determination that the claimant has
not met the applicable standard of conduct shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
Article VI provides that the right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred therein shall not be exclusive of any other right which
any person may have or acquire under any statute, provision of the Company's
Certificate or By-Laws, or otherwise. Finally, Article VI provides that the
Company may maintain insurance, at its expense, to protect itself and any of
its directors, officers, employees or agents against any expense, liability or
loss, whether or not the Company would have the power to indemnify such person
against such expenses, liability or loss under the Delaware Law. The Company
expects to purchase insurance on behalf of directors, officers and other
persons which may cover certain such expenses, liability or loss.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Reg. S-K
Exhibits Description
- -------- -----------
1 --Form of Underwriting Agreement.
4.1 --Form of Indenture dated as of May , 1996
(the "Senior Indenture") between Illinois Central
Railroad Company and The Chase Manhattan Bank, N.A.,
Trustee.
4.2 --Form of Indenture dated as of May , 1996 (the
"Subordinated Indenture") between Illinois Central
Railroad Company and The Chase Manhattan Bank, N.A.,
Trustee.
5 --Opinion of Davis Polk & Wardwell (legality opinion).
12.1 --Computation of ratio of earnings to fixed charges and pro
forma ratio of earnings to fixed charges for
Illinois Central Railroad Company and Subsidiaries.
23.1 --Consent of Arthur Andersen LLP.
23.2 --Consent of Davis Polk & Wardwell (included in
Exhibit 5).
25.1 --Statement of eligibility and qualification on Form T-1 of
The Chase Manhattan Bank, N.A.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in the 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% change in the maximum aggregate offering
price set in the "Calculation of Registration Fee" Table in the
effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, when applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of Chicago, State of Illinois on the
15th day of May, 1996.
ILLINOIS CENTRAL RAILROAD COMPANY
/s/ Dale W. Phillips
By ---------------------------------
Dale W. Phillips, Vice President
and Chief Financial Officer
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
constitutes and appoints E. Hunter Harrison, Ronald A. Lane and Dale W.
Phillips, and any agent for service named in this Registration Statement and
each of them, his, her or its true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him, her or it and in
his, her, or its name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he, she, or it might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Gilbert H. Lamphere
- ----------------------------- Chairman of the Board, May 15, 1996
Gilbert H. Lamphere Director
/s/ E. Hunter Harrison
- ----------------------------- President and Chief May 15, 1996
E. Hunter Harrison Executive Officer (principal
executive officer), Director
/s/ Dale W. Phillips
- ----------------------------- Vice President and May 15, 1996
Dale W. Phillips Chief Financial Officer
(principal financial officer),
Director
/s/ John V. Mulvaney
- ----------------------------- Controller May 15, 1996
John V. Mulvaney (principal accounting officer)
/s/ Ronald A. Lane
- ----------------------------- Director May 15, 1996
Ronald A. Lane
/s/ John D. McPherson
- ----------------------------- Director May 15, 1996
John D. McPherson
/s/ Donald H. Skelton
- ----------------------------- Director May 15, 1996
Donald H. Skelton
EXHIBIT INDEX
Reg. S-K Sequentially
Exhibits Description Numbered Page
- -------- ----------- -------------
1 -- Form of Underwriting Agreement
4.1 -- Form of Senior Indenture
4.2 -- Form of Subordinated Indenture
5 -- Opinion of Davis Polk & Wardwell
(legality opinion)
12.1 -- Computation of ratio of earnings to
fixed charges and pro forma ratio of earnings
to fixed charges for Illinois Central Railroad
Company and Subsidiaries
23.1 -- Consent of Arthur Andersen LLP
23.2 -- Consent of Davis Polk & Wardwell (included in
Exhibit 5)
25.1 -- Statement of eligibility and qualification on
Form T-1 of The Chase Manhattan Bank, N.A.
Exhibit 1
ILLINOIS CENTRAL RAILROAD COMPANY
Debt Securities
FORM OF UNDERWRITING AGREEMENT BASIC PROVISIONS
1. Introduction. Illinois Central Railroad Company, a Delaware
corporation (the "Company"), proposes to issue and sell from time to time
certain of its debt securities registered under the registration statement
referred to in Section 2(a) (the "Registered Securities"). The Registered
Securities will be issued under an indenture dated as of May , 1996 (the
"Senior Indenture") between the Company and The Chase Manhattan Bank (National
Association), as Trustee, or an indenture dated as of May , 1996 (the
"Subordinated Indenture"; as used herein, "Indenture" means either or both, as
appropriate, the Senior Indenture and the Subordinated Indenture) between the
Company and The Chase Manhattan Bank (National Association), as Trustee, in
one or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms, with all such terms for
any particular series of the Registered Securities being determined at the
time of sale. Particular series of the Registered Securities will be sold
pursuant to a Terms Agreement, referred to in Section 3, for resale in
accordance with the terms determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in Section 3
are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives", as used in this Underwriting
Agreement Basic Provisions, shall mean the Underwriters.
2. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (Registration No. 333-
) with respect to the Registered Securities (i) has been prepared by the
Company in conformity with the requirements of the United States Securities
Act of 1933, as amended (the "Securities Act"), and the rules and
regulations (the "Rules and Regulations") of the United States Securities
and Exchange Commission (the "Commission") thereunder, (ii) has been filed
by the Company with the Commission under the Securities Act and (iii) has
become effective under the Securities Act. As provided in Section 4(b), a
prospectus supplement reflecting the terms of the Securities, the terms of
the offering thereof and the other matters set forth therein will be
prepared and filed pursuant to Rule 424 under the Securities Act. In
addition, a preliminary prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof, and the other matters set
forth therein may also be prepared and filed pursuant to Rule 424 under the
Securities Act. Such prospectus supplement, in the form filed after the
date hereof pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement", and any such preliminary prospectus supplement in the form
filed after the date hereof pursuant to Rule 424 is hereafter referred to
as the "Preliminary Prospectus Supplement". Any prospectus accompanied by
a Preliminary Prospectus Supplement is hereinafter referred to,
collectively with such Preliminary Prospectus Supplement, as a "Preliminary
Prospectus". The registration statement referred to in this Section 2(a),
as amended at the time of execution of the applicable Terms Agreement,
including the exhibits thereto and the documents incorporated by reference
therein, is herein called the "Registration Statement", and the basic
prospectus included therein relating to all offerings of securities under
the Registration Statement, as supplemented by the Prospectus Supplement,
is herein called the "Prospectus", except that, if such basic prospectus is
amended or supplemented on or prior to the date on which the Prospectus
Supplement is first filed pursuant to Rule 424, the term "Prospectus" shall
refer to the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference therein. Any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
or interim report of the Company or other documents filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement. The Commission has not issued any order suspending
the effectiveness of the Registration Statement, and no stop-order has been
initiated or threatened by the Commission.
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such Registration Statement conformed in all
material respects to the requirements of the Securities Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules
and regulations of the Commission under such acts and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and, on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Securities Act, the Trust
Indenture Act and the Rules and Regulations, and none of such documents
will include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that the Company makes no
representation or warranty as to that part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee under the Indenture or
information contained in or omitted from the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(d) The Company has all necessary corporate power and authority to
execute and deliver the Terms Agreement (including this Underwriting
Agreement Basic Provisions) and perform its obligations thereunder; the
Terms Agreement (including this Underwriting Agreement Basic Provisions)
has been duly authorized, executed and delivered by the Company,
constitutes the valid and binding agreement of the Company and is
enforceable against the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) or an implied covenant of
good faith and fair dealing.
(e) Neither the Company nor any of its subsidiaries (as defined in
Section 14) is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company or the Company and its
subsidiaries, taken as a whole; the execution, delivery and performance of
the Terms Agreement (including this Underwriting Agreement Basic Provisions)
and compliance by the Company with the provisions of the Indenture and the
Securities will not conflict with, result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the Company or any
of its subsidiaries pursuant to the terms of, or constitute a material
default under, any material agreement, indenture or instrument, or result in
a violation of the corporate charter or by-laws of the Company or any of its
subsidiaries or any order, rule, or regulation of any court or governmental
agency having jurisdiction over the Company, any of its subsidiaries or
their respective properties; and except as required by the Securities Act,
the Trust Indenture Act, and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency in the United States (including any state regulatory
agency having jurisdiction over the Company or any of its subsidiaries),
which has not been made or obtained, is required for the execution, delivery
and performance of the Terms Agreement (including this Underwriting
Agreement Basic Provisions) or compliance with the provisions of the
Indenture and the Securities by the Company.
(f) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse change
in, or any adverse development which materially affects, the business,
properties, financial condition, results of operations or prospects of the
Company and its subsidiaries taken as a whole from the dates as of which
information is given in the Registration Statement and the Prospectus; and
since such date, there has not been any change in the capital stock or
long-term debt of the Company except as described in the Registration
Statement and the Prospectus.
(g) Arthur Andersen LLP, whose reports appear in the Registration
Statement and the Prospectus or are incorporated by reference therein, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(h) The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due execution and delivery thereof by the
Trustee, constitutes a valid and binding agreement of the Company and is
enforceable against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law) or an implied covenant of good faith and fair dealing;
the Registered Securities have been duly authorized by the Company, and,
when the Securities are authenticated in the manner set forth in the
Indenture and are issued and delivered against payment therefor as provided
herein and the Terms Agreement relating to such Securities, such Securities
will be duly executed, and, assuming due authentication by the Trustee,
duly issued and delivered by the Company, and will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture and will be enforceable against the Company in accordance with
their terms and the terms of the Indenture, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law) or an implied covenant of good faith and fair dealing;
and the Securities and the Indenture will conform in all material respects
to the descriptions thereof contained in the Registration Statement and the
Prospectus.
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations in each jurisdiction
in which their respective ownership of property or the conduct of their
respective businesses requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole, and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are
engaged; all of the outstanding shares of capital stock of each of the
Company's subsidiaries are validly issued and outstanding, fully paid and
nonassessable and, except as described in the Registration Statement and
the Prospectus, are owned, directly or indirectly, by the Company free and
clear of all liens, claims, or encumbrances; and none of the subsidiaries
of the Company is a "significant subsidiary" as such term is defined in the
Rules and Regulations.
(j) Except as described in the Registration Statement and the
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the Company
or any of its subsidiaries which might result in any material adverse change
in the business, properties, financial condition, results of operations or
prospects of the Company or of the Company and its subsidiaries taken as a
whole, or which could reasonably be expected to adversely affect the
consummation of the transactions contemplated hereby or by the related Terms
Agreement.
(k) Except as otherwise disclosed therein, the financial statements
filed as part of the Registration Statement or included or incorporated by
reference in any Preliminary Prospectus or the Prospectus present fairly the
financial condition and results of operations of the entities purported to
be shown thereby, at the dates and for the periods indicated, and the
audited consolidated financial statements included therein have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(l) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Securities Act or
by the Rules and Regulations which have not been filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(m) There are no holders of securities of the Company who, by reason
of the filing of the Registration Statement under the Securities Act or the
execution by the Company of any Terms Agreement (including this Underwriting
Agreement Basic Provisions), have the right to request or demand that the
Company register under the Securities Act securities held by them.
3. Purchase and Offering of the Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications (the "Terms Agreement") at the
time the Company determines to sell the Securities. The Terms Agreement will
incorporate by reference the provisions of this Underwriting Agreement Basic
Provisions, except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Securities as set forth in
Schedule II to the Terms Agreement, including, but not limited to, interest
rate, maturity, any redemption provisions and any sinking fund requirements.
The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than five full
business days thereafter as the Representatives and the Company agree as the
time for payment and delivery, being herein and in the Terms Agreement
referred to as the "Closing Date"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as
set forth in the Prospectus.
4. Further Agreements of the Company. The Company agrees to furnish
promptly to Simpson Thacher & Bartlett, counsel for the Underwriters, one
signed copy of the registration statement relating to the Registered
Securities, including all exhibits, in the form it became effective and of all
amendments thereto and, in connection with each offering of Securities, the
Company further agrees:
(a) To deliver promptly to each Underwriter and counsel to the
Underwriters such number of conformed copies of the Registration Statement
as originally filed and each amendment thereto (in each case excluding
exhibits other than the computation of the ratio of earnings to fixed
charges, the Indenture and this Underwriting Agreement Basic Provisions)
and of each Preliminary Prospectus, the Prospectus and any documents
incorporated by reference in the Preliminary Prospectus or Prospectus
(excluding exhibits thereto) and any amended or supplemented Prospectus, as
each Underwriter and counsel to the Underwriters may request;
(b) To prepare a Prospectus Supplement relating to the applicable
Securities in a form approved by the Underwriters and to file the
Prospectus, including the Prospectus Supplement, promptly with the
Commission pursuant to Rule 424(b)(1) or, if consented to by the
Underwriters pursuant to Rule 424(b)(4) and, during the period of time when
a Prospectus is, in the opinion of counsel for the Underwriters, required
to be delivered by an Underwriter or dealer, (i) to file any amendment to
the Registration Statement or any supplement to the Prospectus, (ii) to
file under the Exchange Act any document incorporated by reference in the
Prospectus that may, in the reasonable judgment of the Company or the
Underwriters, be required by the Securities Act or requested by the
Commission and (iii) to file promptly with the Commission all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus;
(c) Prior to filing with the Commission any amendment to the
Registration Statement, supplement to the Prospectus, any document
incorporated by reference in the Prospectus, or to filing any Prospectus
pursuant to Rule 424(b)(1), (b)(3) or (b)(4) of the Rules and Regulations,
to furnish a copy thereof to the Underwriters and counsel for the
Underwriters and obtain the consent of the Underwriters to the filing;
(d) To advise the Underwriters and counsel to the Underwriters
promptly (i) when any post-effective amendment to the Registration Statement
becomes effective, (ii) of any request or proposed request by the Commission
for an amendment to the Registration Statement, a supplement to the
Prospectus or any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threat of any stop order
proceeding, (iv) of receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose, and (v) of the happening of any event which makes untrue any
statement of a material fact made in the Registration Statement or the
Prospectus, or which requires the making of a change in the Registration
Statement or the Prospectus in order to make any material statement therein
not misleading;
(e) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, suspending or preventing the
use of any Preliminary Prospectus or Prospectuses, or if the qualification
of the Securities for sale in any jurisdiction shall be suspended, to make
every reasonable effort to obtain the lifting of that order or suspension
at the earliest possible time;
(f) As soon as practicable, but not later than 16 months after the
date of each Terms Agreement, to make generally available to its security
holders and to the Underwriters an earning statement of the Company and its
subsidiaries, conforming with the requirements of Section 11(a) of the
Securities Act, covering a period of at least 12 months beginning on the
first day of the first fiscal quarter of the Company commencing after the
later of (i) the effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement;
(g) For a period of three years after the date of any Terms
Agreement, to furnish to the Underwriters copies of all public reports and
all reports and financial statements furnished by the Company to the
principal national securities exchange or quotation system upon which its
Common Stock may be listed pursuant to the requirements of or agreements
with such exchange or system or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as the
Underwriters may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Securities;
(i) Except with the prior written consent of the Underwriters not to
sell, cause the sale of, offer or contract to sell, file a registration
statement under the Securities Act covering, sell or grant options, rights
or warrants with respect to or otherwise dispose of, directly or
indirectly, any debt securities of the Company (or any securities
convertible into or exchangeable for such debt securities), except with
respect to any existing employee benefit or compensation plans, within 90
days after the date of any Terms Agreement;
(j) The Company has not taken and agrees that it will not take,
directly or indirectly, any action which might reasonably be expected to
cause or result in (i) stabilization of the price of the Securities to
facilitate the sale or resale of the Securities or (ii) manipulation of the
price of the Securities; and
(k) To apply the net proceeds from the sale of the Securities being
sold by the Company as set forth in the Prospectus.
5. Expenses. The Company agrees to pay the costs incident to the
authorization, issuance, sale and delivery of the Securities to be sold to the
Underwriters and any taxes payable in that connection; the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto and any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein; the costs of
distributing the Registration Statement as originally filed and each amendment
and any post-effective amendments thereof (including exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference in any of the foregoing
documents; the costs of printing the Securities, the Terms Agreement
(including this Underwriting Agreement Basic Provisions), and other
underwriting and selling group documents and the Indenture; the fees and
expenses of qualifying the Securities under the securities laws of the several
jurisdictions as provided in Section 4(h) and of preparing and printing a Blue
Sky Memorandum and a memorandum concerning the legality of the Securities as
an investment (including reasonable related fees and expenses of counsel to
the Underwriters); the costs of any filings with the National Association of
Securities Dealers, Inc.; any fees charged by securities rating services for
rating the Registered Securities; any fees and expenses of the Trustee
(including reasonable fees and expenses of counsel to the Trustee) in
connection with the Indenture and the transactions contemplated thereby; the
fees and expenses of counsel to the Underwriters related to the preparation
and filing of the Registration Statement; and all other costs and expenses
incident to the performance of the obligations of the Company under this
Underwriting Agreement Basic Provisions; provided that, except as provided in
this Section and in Sections 8 and 10, the Underwriters shall pay the fees and
expenses of their counsel related to any offering of the Securities, any
transfer taxes on the Securities which they may sell and the expenses of
advertising any offering of the Securities made by the Underwriters.
6. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy when
made and on the Delivery Date of the representations and warranties of the
Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 4(b) of this Underwriting Agreement Basic
Provisions; at or before the Delivery Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued, and
prior to that time no stop order proceeding shall have been initiated or
threatened by the Commission; any request of the Commission for inclusion
of additional information in the Registration Statement or the Prospectus
or otherwise shall have been complied with or otherwise satisfied; and the
Company shall not have filed with the Commission the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus
without the consent of the Underwriters.
(b) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus or (ii) since such date there
shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
(c) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Simpson Thacher &
Bartlett counsel to the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(d) All corporate proceedings and other legal matters incident to
the authorization, form and validity of the Terms Agreement (including
this Underwriting Agreement Basic Provisions), the Indenture and the
Securities and the form of Registration Statement and the Prospectus,
other than financial statements and other financial data, and all other
legal matters relating to the Terms Agreement (including this
Underwriting Agreement Basic Provisions) and the transactions
contemplated thereby shall be satisfactory in all respects to Simpson
Thacher & Bartlett, counsel to the Underwriters, and the Company shall
have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters, and
Simpson Thacher & Bartlett shall have furnished the Underwriters their
favorable opinion with respect to such matters and such additional
matters as the Underwriters may reasonably request.
(e) Davis Polk & Wardwell shall have furnished to the
Representatives their opinion addressed to the Underwriters and dated
the Delivery Date as counsel to the Company, to the effect that:
(i) the Company has been duly incorporated and is validly
existing and in good standing under the laws of its jurisdiction of
incorporation;
(ii) the Company has all necessary corporate power to execute and
deliver the Terms Agreement (including this Underwriting Agreement
Basic Provisions) and to perform its obligations thereunder;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, when executed by the Trustee, will constitute a
valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good
faith and fair dealing;
(iv) the Securities have been duly authorized, and assuming due
execution, authentication and delivery of the Securities in
accordance with the provisions of the Indenture and delivery of
and payment for the Securities by the Underwriter in accordance
with the Terms Agreement (including this Underwriting Agreement
Basic Provisions), will constitute valid and binding obligations
of the Company, entitled to the benefits of the Indenture,
enforceable in accordance with their terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing;
(v) the Securities and the Indenture conform in all material
respects to the statements concerning them in the Registration
Statement and the Prospectus;
(vi) the Registration Statement has been declared effective
under the Securities Act; any required filing of the Prospectus
pursuant to Rule 424(b) of the Rules and Regulations has been made
within the time period required by Rule 424(b) of the Rules and
Regulations; and no stop-order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose is pending or, to the knowledge of such counsel,
threatened by the Commission;
(vii) the Registration Statement and the Prospectus (other than
the financial statements and related schedules therein, as to which
such counsel are not called upon to express an opinion) comply as to
form in all material respects with the requirements of the Securities
Act and the Rules and Regulations thereunder, and the documents
incorporated by reference in the Prospectus and any further amendment
or supplement to any such incorporated document made by the Company
prior to the Delivery Date (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder;
(viii) the statements made in the Prospectus under the captions
"Description of Securities," insofar as they purport to summarize the
provisions of documents or agreements specifically referred to
therein, fairly present the information called for with respect
thereto by the Form S-3; and
(ix) the Terms Agreement (including the provisions of this
Underwriting Agreement Basic Provisions) has been duly authorized,
executed and delivered by the Company. The execution, delivery
and performance of the Terms Agreement (including the provisions
of this Underwriting Agreement Basic Provisions), and the
compliance by the Company with the provisions of the Indenture and
the Securities, will not conflict with or result in a violation of
the corporate charter or by-laws of the Company, or any law, rule
or regulation or to such counsel's knowledge without independent
investigation, conflict with or result in the violation of any
order or determination of any arbitrator, court or governmental
agency having jurisdiction over the Company or any of the
Company's subsidiaries the effect of which would be material and
adverse to the Company and its subsidiaries taken as a whole.
Except as required by the Securities Act, the Trust Indenture Act,
applicable state securities laws or the Interstate Commerce Act,
no consent, authorization or order of, or filing or registration
with, any court or governmental agency in the United States, which
has not been made or obtained, is required for the execution,
delivery and performance of the Terms Agreement (including the
provisions of this Underwriting Agreement Basic Provisions), and
compliance with the provisions of the Indenture and the Securities
by the Company.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law of
the State of Delaware. Such counsel shall also have furnished to the
Underwriters a statement, addressed to the Underwriters, dated the Delivery
Date to the effect that (x) such counsel has acted as counsel to the Company
only in connection with the preparation of the Registration Statement and (y)
based on the foregoing, no facts have come to the attention of such counsel
which lead them to believe that (I) the Registration Statement (other than the
financial statements and related schedules therein, as to which such counsel
are not called upon to express a belief), as of the Effective Date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (except as aforesaid), as
amended and supplemented, if applicable, contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (II) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Company prior to the
Delivery Date, when they became effective or were filed with the Commission,
as the case may be, contained, in the case of a registration statement which
became effective under the Securities Act, any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or, in the
case of other documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus except for the statements made in the Prospectus under the caption
"Description of Securities" insofar as such statements relate to the
Securities and concern legal matters.
(f) Ronald Lane, General Counsel of the Company, shall have
furnished to the Representatives his opinion addressed to the
Underwriters and dated the Delivery Date as counsel to the Company, to
the effect that:
(i) the Company and each of its subsidiaries have been duly
incorporated and are validly existing and in good standing under
the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in all jurisdictions in which their respective
ownership of property or the conduct of their respective
businesses requires such qualification (except where the failure
so to qualify would not have a material adverse effect upon the
Company or the Company and its subsidiaries taken as a whole), and
have all power and authority necessary to own their respective
properties and conduct the businesses in which they are engaged as
described in the Prospectus except to the extent that the failure
to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries taken
as a whole. All the outstanding shares of capital stock of each
of the Company's subsidiaries have been duly authorized and are
validly issued and outstanding, fully paid and nonassessable and
are owned directly by the Company or a wholly owned subsidiary of
the Company and, except as described in the Registration Statement
and Prospectus, are free and clear of any lien, claim,
encumbrance, restriction, preemptive rights or any other claim of
any third party known to such counsel;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and the Trustee and duly qualified under
the Trust Indenture Act and is a valid and binding instrument of
the Company and is enforceable against the Company in accordance
with its terms;
(iii) the Securities have been duly authorized, and assuming
due execution, authentication and delivery of the Securities in
accordance with the provisions of the Indenture and delivery of
and payment for the Securities by the Underwriters in accordance
with the Terms Agreement (including this Underwriting Agreement
Basic Provisions), will be validly issued and binding obligations
of the Company, entitled to the benefits of the Indenture and are
enforceable against the Company in accordance with their terms;
(iv) the Securities and the Indenture conform in all material
respects to the statements concerning them in the Registration
Statement and the Prospectus;
(v) there are no legal or governmental proceedings pending or,
to the best of such counsel's knowledge, threatened to which the
Company or any of its subsidiaries is a party, which would have a
material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and
its subsidiaries taken as a whole, or which are required to be
disclosed in the Registration Statement or the Prospectus and
which are not disclosed and correctly summarized therein;
(vi) there are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not
been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations;
(vii) neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws or, to the best of
such counsel's knowledge, in default under any material agreement,
indenture or instrument, the effect of which would be material and
adverse to the Company and its subsidiaries, taken as a whole;
(viii) the Terms Agreement (including the provisions of this
Underwriting Agreement Basic Provisions) has been duly authorized,
executed and delivered by the Company; the execution, delivery and
performance of the Terms Agreement (including the provisions of
this Underwriting Agreement Basic Provisions) and compliance by
the Company with the provisions of the Indenture and the
Securities will not conflict with, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its subsidiaries pursuant to the
terms of, or constitute a default under, any agreement, indenture
or instrument binding upon the Company and known to such counsel,
or result in a violation of the corporate charter or by-laws of
the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction
over the Company, any of its subsidiaries or their property, the
effect of which would be material and adverse to the Company and
its subsidiaries, taken as a whole; and no consent, authorization
or order of, or filing or registration with, any court or
governmental agency, which has not been made or obtained, is
required for the execution, delivery and performance of the Terms
Agreement (including the provisions of this Underwriting Agreement
Basic Provisions), and compliance with the provisions of the
Indenture and the Securities by the Company, except such as may be
required by the Securities Act, state securities laws or the
Interstate Commerce Act; and
(ix) the execution and delivery of the Terms Agreement
(including the provisions of this Underwriting Agreement Basic
Provisions) do not conflict with, or constitute a violation of,
any order, rule or regulation of the Illinois Commerce Commission
and no consent, authorization or order of, or filing or
registration with, the Illinois Commerce Commission is required
for the performance by the Company of the Terms Agreement
(including the provisions of this Underwriting Agreement Basic
Provisions).
In rendering such opinion, such counsel may state that his opinion
is limited to matters governed by the federal laws of the United States of
America, the laws of the State of Illinois and the General Corporation Law
of Delaware. Such counsel shall also have furnished to the Underwriters a
statement, addressed to the Underwriters, dated the Delivery Date to the
effect that (x) such counsel has acted as counsel to the Company on a
regular basis and has acted as counsel to the Company in connection with
the preparation of the Registration Statement and (y) based on the
foregoing, no facts have come to the attention of such counsel which lead
him to believe that the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Prospectus, as amended
or supplemented, if applicable, contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement to the effect that
such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for the statements made in the
Prospectus under the caption "Description of Securities" insofar as such
statements relate to the Securities and concern legal matters.
(g) The Company shall have furnished to the Representatives on
the Delivery Date a certificate addressed to the Underwriters and dated the
Delivery Date, signed on behalf of the Company by the Company's Chief
Executive Officer and by the Vice President and Chief Financial Officer
stating that:
(i) the representations, warranties and agreements of the
Company in the Terms Agreement (including this Underwriting
Agreement Basic Provisions) are true and correct as of the
Delivery Date; the Company has complied with all its agreements
contained in the Terms Agreement (including this Underwriting
Agreement Basic Provisions); and the conditions on its part to be
fulfilled prior to the Delivery Date set forth in the Terms
Agreement (including this Underwriting Agreement Basic Provisions)
have been fulfilled;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened; and
(iii) they have carefully examined the Registration Statement
and the Prospectus and, in their judgment, (A) as of the date of
the Terms Agreement, neither the Registration Statement nor the
Prospectus included any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B)
since such date, no event has occurred which should have been set
forth in the Prospectus or a supplement thereto or amendment
thereof which has not been set forth in such a supplement or
amendment.
(h) With respect to the letter of Arthur Andersen LLP, delivered
to the Representatives concurrently with the execution of the Terms
Agreement, (the "initial letter"), the Company shall have furnished to the
Representatives a letter (as used in this paragraph, the "bring-down
letter") of such accountants, addressed to the Underwriters and dated the
Delivery Date confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, stating, as of the date of
the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and confirming in all material
respects the conclusions and findings set forth in the initial letter.
All opinions, letters, certificates and documents mentioned above
or elsewhere in this Underwriting Agreement Basic Provisions shall be
deemed to be in compliance with the provisions hereof if they are exactly
in the form set forth above and, if not, or if no particular form is set
forth above, only if they are in form and substance reasonably satisfactory
to Simpson Thacher & Bartlett, counsel to the Underwriters.
7. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, and any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the
Securities), to which that Underwriter or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement, the Prospectus,
or the Registration Statement or Prospectus as amended or supplemented, or
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse each Underwriter and each such
controlling person promptly upon demand for any legal and other expenses
reasonably incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage,
liability or action; provided however that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability
or action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto, made in reliance upon and in conformity with
information furnished in writing to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein; and
provided further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter or any person
controlling an Underwriter on account of any loss, claim, damage, liability
or action arising from the sale of Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of the
Prospectus (or the Prospectus as amended or supplemented) to such person,
if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability, unless such failure
resulted from noncompliance by the Company with Section 4(b) hereof. For
purposes of the last proviso to the immediately preceding sentence, the
term "Prospectus" shall not be deemed to include the documents incorporated
therein by reference, and no Underwriter shall be obligated to send or give
any supplement or amendment to any document incorporated by reference in
any Preliminary Prospectus or the Prospectus to any person other than a
person to whom such Underwriter had delivered such incorporated document or
documents in response to a written request therefor. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or any controlling person of that
Underwriter.
(b) Each Underwriter severally, and not jointly, shall indemnify
and hold harmless the Company, each of its directors, each of its officers
who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Company, or any such director or
officer or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Registration Statement or
Prospectus as amended or supplemented, or arises out of, or is based upon,
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company, or any such director or officer
or controlling person promptly upon demand for any legal and other expenses
reasonably incurred by the Company, or any such director or officer or
controlling person in investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may
otherwise have to the Company, or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from its obligations hereunder, except to the
extent that the indemnifying party is materially prejudiced by such failure
to notify, or from any liability which it may have to an indemnified party
otherwise than under this Section 7. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable investigation, provided, however,
that the Representatives shall have the right to employ counsel to
represent the Underwriters and their respective controlling persons who may
be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under this
Section 7 if, in the reasonable judgment of the Underwriters, it is
advisable for the Underwriters and such controlling persons to be
represented by separate counsel, and in that event the fees and expenses of
such separate counsel shall be paid by the indemnifying party. Except as
provided above, it is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiffs, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel with respect to any proceeding, the
indemnifying party agrees that it shall be liable for any settlement of any
such proceeding effected without its consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement.
(d) If the indemnification provided for in this Section 7 shall
be for any reason unavailable or insufficient to hold the indemnified party
harmless, then each indemnifying party, with respect to its obligations as
provided in Section 7(a) or 7(b), shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of the Securities,
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other hand
with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other hand with
respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the sale of the Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts,
commissions and fees received by the Underwriters with respect to such
offering, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied
by the Company or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d) and subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 7(d) are several in proportion to
their respective underwriting obligations (or proceeds) and not joint.
8. Defaulting Underwriter. If, on the Delivery Date (as
hereinafter defined) any Underwriter defaults in the performance of its
obligations to purchase Securities under the Terms Agreement, the remaining
nondefaulting Underwriters shall be obligated to purchase the Securities
which the defaulting Underwriter agreed but failed to purchase on such date
in the respective proportions which the principal amount of Securities set
forth in the Terms Agreement for each remaining nondefaulting Underwriter
bears to the total principal amount of Securities set forth in the Terms
Agreement for each remaining non-defaulting Underwriters; provided,
however, that the remaining nondefaulting Underwriters shall not be
obligated to purchase any of the Securities on such date if the total
principal amount of the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of
the total principal amount of Securities to be purchased on such date, and
any remaining nondefaulting Underwriter shall not be obligated to purchase
more than 110% of the principal amount of Securities which it agreed to
purchase on such date pursuant to the Terms Agreement. If the foregoing
maximums are exceeded, the remaining nondefaulting Underwriters, or those
other underwriters satisfactory to the remaining nondefaulting Underwriters
who so agree, shall have the right, but shall not be obligated, to purchase
(in such proportions as may be agreed upon among them) the entire principal
amount of the Securities to be purchased by the Underwriters on such date.
If the foregoing maximums are exceeded and the remaining Underwriters or
other underwriters satisfactory to the Underwriters do not elect to
purchase the amounts which the defaulting Underwriter or Underwriters
agreed but failed to purchase, the Terms Agreement shall terminate without
liability on the part of any nondefaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of
expenses to any nondefaulting Underwriter as set forth in Section 5. As
used herein, the term "Underwriter" includes any person substituted for a
Underwriter under this Section 8.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by such
Underwriter's default. If other underwriters are obligated or agree to
purchase the Securities of a defaulting Underwriter, either the non-
defaulting Underwriters or the Company may postpone the related delivery
date for up to seven full business days in order to effect any changes
that, in the opinion of counsel for the Company or counsel for the
Underwriters, may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
9. Termination. The obligations of the Underwriters under the
Terms Agreement (including this Underwriting Agreement Basic Provisions)
may be terminated by the Representatives, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and
payment for the Securities, if prior to that time (a) a downgrading shall
have occurred in the rating accorded the Company's debt securities
outstanding on the date of the Terms Agreement by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations, (b)
any such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities outstanding on the date of the Terms
Agreement, (c) trading in securities generally on the New York Stock
Exchange, The American Stock Exchange, the Chicago Board Options Exchange
or the over-the-counter market shall have been suspended or materially
limited or minimum prices shall have been established on one or more of
such exchanges or such market by the Commission or such exchange or other
regulatory body or governmental authority having jurisdiction, (d) a
banking moratorium shall have been declared by United States federal or New
York State authorities, (e) the United States shall have become engaged in
hostilities or there shall have been an escalation in hostilities involving
the United States or a declaration of a national emergency or war shall
have been made by the United States, (f) there shall have been such a
material adverse change in national or international political, financial
or economic conditions, national or international equity markets or
currency exchange rates or controls as to make it, in the judgment of a
majority in interest of the Underwriters, inadvisable or impracticable to
proceed with the payment for and delivery of the Securities, or (g)(i) the
Company or any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
10. Expenses upon Termination. If the sale of the Securities
provided for in any Terms Agreement is not consummated because of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, if notice shall have been given
pursuant to Section 12 preventing the Terms Agreement from becoming
effective, or if the Underwriters shall decline to purchase the Securities
for any reason permitted under the Terms Agreement (including the
termination of the Terms Agreement pursuant to Section 9 hereof), the
Company shall reimburse the Underwriters for the fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been
incurred by them in connection with the Terms Agreement (including this
Underwriting Agreement Basic Provisions) and the proposed purchase of the
Securities and upon demand the Company shall pay the full amount thereof to
the Underwriters. If the Terms Agreement is terminated pursuant to Section
8 by reason of the default of an Underwriter or the Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including this Underwriting
Agreement Basic Provisions) will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities.
12. Notices. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made by all of the
Underwriters or their authorized representative. Any notice to the
Underwriters shall be sufficient if given in writing or telegraphed and
confirmed to the Representatives, at the addresses specified in the Terms
Agreement; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to the Company by the
Representatives upon request; any notice to the Company shall be sufficient
if, given in writing or telegraphed and confirmed addressed to the Company
at Illinois Central Railroad Company, 455 North Cityfront Plaza Drive,
Chicago, Illinois 60611, Attention: President.
13. Persons Entitled to Benefit of Agreement. This Underwriting
Agreement Basic Provisions and each Terms Agreement shall inure to the
benefit of and be binding upon the Underwriters, the Company and their
respective successors. The terms and provisions of this Underwriting
Agreement Basic Provisions and each Terms Agreement are for the sole
benefit of only those persons, except that (a) the representations,
warranties, indemnities and agreements of the Company contained in this
Underwriting Agreement Basic Provisions and each Terms Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who
control any Underwriter within the meaning of Section 15 of the Securities
Act, and (b) the indemnity agreement of the Underwriters contained in
Section 7 of this Underwriting Agreement Basic Provisions shall be deemed
to be for the benefit of directors of the Company, officers of the Company
who have signed the Registration Statement, and any person controlling the
Company. Nothing in this Underwriting Agreement Basic Provisions or any
Terms Agreement is intended or shall be construed to give any person other
than the persons mentioned in the preceding two sentences any legal or
equitable rights, remedy or claim under or in respect of this Underwriting
Agreement Basic Provisions or any Terms Agreement.
14. Certain Definitions. For purposes of this Underwriting
Agreement Basic Provisions, (a) "business day" means any day on which the
New York Stock Exchange is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Underwriting Agreement Basic Provisions
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to the choice of law or conflicts of laws
principles thereof.
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or
interpretation of this Underwriting Agreement Basic Provisions.
Dated May , 1996
ANNEX I
Terms Agreement
[REPRESENTATIVES OF THE UNDERWRITERS]
As Representatives of the several
Underwriters named in Schedule I
[Address of Lead Underwriter]
[Date]
Dear Sirs:
Illinois Central Railroad Company (the "Company") proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement Basic Provisions dated as of May , 1996 (a copy of which is
attached hereto as Annex A) (the "Underwriting Agreement"), to issue the
Registered Securities specified in Schedule II hereto (the "Securities")
and to sell the Securities to the Underwriters named in Schedule I hereto
(the "Underwriters"). The Registered Securities will be issued pursuant to
the Indenture. Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be
a part of this Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date
of this Agreement, except that each representation and warranty with
respect to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation and warranty as of the date of the
Prospectus (as therein defined) and also a representation and warranty as
of the date of this Agreement in relation to the Prospectus as amended or
supplemented relating to the Securities. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of
Securities and the address referred to in Section 12 are set forth in
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Securities, in the form
heretofore delivered to you, is now proposed to be filed with the Commission.
On the basis of the representations, warranties, covenants and
agreements of the Company contained herein and in the Underwriting
Agreement, but subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at a purchase price to the Underwriters
set forth in Schedule II hereto, the principal amount of Securities set
forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of
the Underwriters on the one hand and the Company on the other.
ILLINOIS CENTRAL RAILROAD COMPANY
By: _____________________________________
Name:
Title:
Accepted as of the date hereof
at New York, New York
By: _________________________
Name:
Title:
As Representative(s) on behalf of
each of the Underwriters
SCHEDULE I
Principal Amount of
Underwriter Securities to be Purchased
----------- --------------------------
[Names of Representative(s)]......... -------------------
[Names of other Underwriters]........ -------------------
Total........................ ===================
SCHEDULE II
Title of Securities: [___%] [Floating Rate] [Zero Coupon]
[Subordinated] [Notes] [Debentures] due ____
Indenture: [Senior Indenture] [Subordinated Indenture]
Aggregate principal amount: $________________
Initial Offering Price
to Public: ___% of the principal amount of the
Securities, plus accrued interest from
________ to the Delivery Date [and accrued
amortization, if any, from _____________ to
the Delivery Date]
Purchase Price by Underwriters: __% of the principal amount of the
Securities, plus accrued interest from
________ to the Delivery Date [and accrued
amortization, if any, from _____________
to the Delivery Date], in New York
Clearing House next-day funds
Maturity: _______________________
Interest Rate: [___%] [Zero Coupon]
Interest Payment Dates: [months and dates]
Date from which interest shall
accrue: _______________________
Regular Record Dates: [months and dates]
Redemption Provisions: [No provisions for redemption prior to
maturity]
[The Securities may be redeemed, [otherwise
than through the sinking fund,] in whole or
in part at the option of the Company, in the
amount of $__________ or an integral multiple
thereof, [on or after _________________ at
the following redemption prices (expressed in
percentages of principal amount). If
[redeemed on or before ___________%, and if]
redeemed during the 12-month period beginning
________________
Redemption Redemption
------------------- ----------------------
Year Price Year Price
------- ---------- ------- ----------
% %
% %
% %
% %
% %
and thereafter at 100% of their principal
amount, together in each case with accrued
interest to the redemption date].
[on any interest payment date falling on
or after ________ at the election of the
Company, at a redemption price equal to
the principal amount thereof, plus accrued
interest to the date of redemption.]
[Other possible redemption provisions,
such as optional or mandatory redemption
upon occurrence of certain events]
[Restrictions on refunding]
Sinking Fund Provisions: [No sinking fund provisions]
[The Securities are entitled to the benefit
of a sinking fund to retire $___________
principal amount of Securities on
____________ in each of the years _________
through ________ at 100% of their principal
amount plus accrued interest] [, together
with [cumulative] [noncumulative] redemptions
at the option of the Company to retire an
additional $________ principal amount of
Securities in the years ______ through
_____ at 100% of their principal amount
plus accrued interest]
Form of Securities: [book-entry] [certificated]
Delivery Date: _________, 19__
Date of Board or Committee
Resolutions Establishing the
Terms and Provisions of the
Securities:
Closing Location:
Limitations on Blue Sky [None] [Specify]
Qualifications:
Limitations on Jurisdiction in [None] [Specify]
which the Securities may be
sold pursuant to Section (5)
of the Underwriting Agreement:
Listing requirement: [None] [NYSE]
Partial reimbursement of [None]
Underwriters' expenses: [$____]
Name and Address of [insert]
Representative(s):
[Other Terms](1):
(1) A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus Supplement
for the offering.
Exhibit 4.1
============================================================================
ILLINOIS CENTRAL RAILROAD COMPANY
as the Company
and
The Chase Manhattan Bank, N.A.
as Trustee
___________________________________
Indenture
Dated as of May , 1996
___________________________________
============================================================================
TABLE OF CONTENTS(*)
(*) Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
Page
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions......................................... 1
SECTION 1.2 Other Definitions................................... 5
SECTION 1.3 Incorporation by Reference of and Control by Trust
Indenture Act..................................... 5
SECTION 1.4 Rules of Construction............................... 6
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating..................................... 6
SECTION 2.2 Execution and Authentication........................ 7
SECTION 2.3 Amount Unlimited; Issuable in Series................ 9
SECTION 2.4 Denominations and Interest Payments................. 11
SECTION 2.5 Registrar and Paying Agent.......................... 12
SECTION 2.6 Paying Agent to Hold Money in Trust................. 12
SECTION 2.7 Transfer and Exchange............................... 13
SECTION 2.8 Replacement Securities.............................. 15
SECTION 2.9 Outstanding Securities.............................. 16
SECTION 2.10 Temporary Securities................................ 16
SECTION 2.11 Cancellation........................................ 17
SECTION 2.12 CUSIP Numbers....................................... 17
SECTION 2.13 Defaulted Interest.................................. 17
SECTION 2.14 Persons Deemed Owners............................... 17
SECTION 2.15 Designation......................................... 18
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article............................ 18
SECTION 3.2 Notice of Redemption; Partial Redemptions........... 18
SECTION 3.3 Payment of Securities Called for Redemption......... 20
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption.......................... 21
SECTION 3.5 Mandatory and Optional Sinking Funds................ 21
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities............................... 23
SECTION 4.2 Maintenance of Office or Agency..................... 24
SECTION 4.3 Corporate Existence................................. 25
SECTION 4.4 Payment of Taxes and Other Claims................... 25
SECTION 4.5 Certificate to Trustee.............................. 25
SECTION 4.6 Reports by the Company.............................. 25
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc......................... 26
SECTION 5.2 Successor Substituted............................... 26
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default................................... 27
SECTION 6.2 Acceleration........................................ 28
SECTION 6.3 Other Remedies...................................... 29
SECTION 6.4 Waiver of Past Defaults............................. 29
SECTION 6.5 Control by Majority................................. 30
SECTION 6.6 Limitation on Suits................................. 30
SECTION 6.7 Rights of Holders to Receive Payment................ 31
SECTION 6.8 Collection Suit by Trustee.......................... 31
SECTION 6.9 Trustee May File Proofs of Claim.................... 31
SECTION 6.10 Application of Proceeds............................. 31
SECTION 6.11 Restoration of Rights and Remedies.................. 32
SECTION 6.12 Undertaking for Costs............................... 33
SECTION 6.13 Rights and Remedies Cumulative...................... 33
SECTION 6.14 Delay or Omission Not Waiver........................ 33
ARTICLE 7
TRUSTEE
SECTION 7.1 General............................................. 33
SECTION 7.2 Certain Rights of Trustee........................... 33
SECTION 7.3 Individual Rights of Trustee........................ 35
SECTION 7.4 Trustee's Disclaimer................................ 35
SECTION 7.5 Notice of Default................................... 35
SECTION 7.6 Reports by Trustee to Holders....................... 35
SECTION 7.7 Compensation and Indemnity.......................... 36
SECTION 7.8 Replacement of Trustee.............................. 36
SECTION 7.9 Successor Trustee by Merger, Etc.................... 37
SECTION 7.10 Eligibility......................................... 37
SECTION 7.11 Money Held in Trust................................. 38
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment............... 38
SECTION 8.2 Defeasance.......................................... 39
SECTION 8.3 Covenant Defeasance................................. 40
SECTION 8.4 Application of Trust Money.......................... 41
SECTION 8.5 Repayment to Company................................ 41
SECTION 8.6 Reinstatement....................................... 41
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.......................... 42
SECTION 9.2 With Consent of Holders............................. 42
SECTION 9.3 Revocation and Effect of Consent.................... 44
SECTION 9.4 Notation on or Exchange of Securities............... 44
SECTION 9.5 Trustee to Sign Amendments, Etc..................... 44
SECTION 9.6 Conformity with Trust Indenture Act................. 45
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Notices............................................. 45
SECTION 10.2 Certificate and Opinion as to Conditions Precedent.. 46
SECTION 10.3 Statements Required in Certificate or Opinion....... 46
SECTION 10.4 Evidence of Ownership............................... 47
SECTION 10.5 Rules by Trustee, Paying Agent or Registrar......... 48
SECTION 10.6 Payment Date Other Than a Business Day.............. 48
SECTION 10.7 Governing Law....................................... 48
SECTION 10.8 No Adverse Interpretation of Other Agreements....... 48
SECTION 10.9 Successors.......................................... 48
SECTION 10.10 Duplicate Originals................................. 48
SECTION 10.11 Separability........................................ 48
SECTION 10.12 Table of Contents, Headings, Etc.................... 48
SECTION 10.13 Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability........ 48
SECTION 10.14 Judgment Currency................................... 49
ARTICLE 11
SUBORDINATION OF SECURITIES
SECTION 11.1 Subordination....................................... 49
SECTION 11.2 Rights of Holders of Senior Indebtedness............ 49
SECTION 11.3 Payments and Distributions.......................... 50
SECTION 11.4 Payments by the Company............................. 52
SECTION 11.5 Appointment of the Trustee by Securityholders....... 52
SECTION 11.6 Notice to Trustee................................... 52
SECTION 11.7 Rights of Trustee................................... 52
SECTION 11.8 Paying Agent........................................ 53
SIGNATURES
INDENTURE, dated as of May , 1996, between Illinois Central
Railroad Company, a Delaware corporation, as the Company, and The Chase
Manhattan Bank, N.A., a national banking association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time
of its debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 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. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting stock, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition)) published in an official language of the
country of publication customarily published at least once a day for at
least five days in each calendar week and of general circulation in The
City of New York or London, as applicable. If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by
the secretary or an assistant secretary to have been duly adopted and to be
in full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means, with respect to any Security, any day, other
than a Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close
in the place of payment of such Security.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"Commission" means the U.S. Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding
or issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Consolidated Net Tangible Assets" with respect to any Person
means, as at any date of determination, the total amount of assets (less
applicable reserves and other properly deductible items) of such Person and
its Subsidiaries determined on a consolidated basis in conformity with GAAP
and set forth on the most recent consolidated balance sheet of such Person
and its Subsidiaries preceding such date of determination after deducting
therefrom (i) all current liabilities (excluding any thereof which are by
their terms extendible or renewable at the option of the obligor thereon to
a time more than 12 months after such date of determination), (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, and (iii) appropriate adjustments on
account of minority interests of other persons holding stock in the
Subsidiaries of such Person, all as determined on a consolidated basis in
conformity with GAAP and set forth on such most recent consolidated balance
sheet of such Person and its Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this
Indenture, located at 4 Chase MetroTech Center, 3rd Floor, Brooklyn, NY
11245, Attention: Global Trust Services.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any Event of Default as defined in Section 6.1 and
any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities,
The Depository Trust Company or any other Person designated as Depositary
pursuant to Section 2.3 with respect to such securities, until a successor
Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Depositary" shall mean or include each
Person who is then a Depositary hereunder and, if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Registered
Global Securities of that series.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established pursuant to Sections 2.1 and 2.3.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement or other security interest
or encumbrance of any kind (including any agreement to grant any security
interest).
"Material Subsidiary" means each existing Subsidiary of the Company
and each subsidiary hereafter acquired or formed by the Company which, in each
case, for the most recent fiscal year of the Company, was the owner of 5% or
more of the consolidated assets of the Company and its Subsidiaries taken as a
whole, as set forth on the consolidated financial statements of the Company
for such fiscal year.
"Officer" means, with respect to the Company, the chairman of the
board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president or chief
executive officer or a vice president and (ii) by the chief financial officer,
the treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 10.3 and delivered to the Trustee. Each
such certificate shall comply with Section 314 of the Trust Indenture Act and
include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.3.
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the
Trustee and complying with Section 10.4. Each such opinion shall comply with
Section 314 of the Trust Indenture Act and include the statements provided in
Section 10.3, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof pursuant to Section
6.2.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on,
the Security.
"Principal Property" of any Person means, at any date of
determination, (a) any line or segment of track, together with signaling or
communication systems appurtenant thereto, owned by such Person as of such
date of determination over which at least 10 million gross tons of revenue
freight moved in the calendar year next preceding such date of
determination; (b) all locomotives and freight cars owned by such Person
as of such date of determination; (c) all freight yards and repair
facilities owned by such Person as of such date of determination; and (d)
all real estate related to the property described in (a), (b) or (c) owned
by such Person as of such date of determination.
"Redeemable Stock" means any equity security that by its terms or
otherwise is required to be redeemed prior to the maturity of the Securities,
or is redeemable at the option of the holder thereof at any time prior to
maturity of the Securities.
"Registered Global Security" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for
such Securities in accordance with Section 2.2, and bearing the legend
prescribed in Section 2.2.
"Registered Security" means any Security registered on the Security
Register.
"Responsible Officer" means any officer of the Trustee within the
Corporate Trust Office of the Trustee including any Managing Director, Vice
President, Assistant Vice President, Secretary, Assistant Secretary or any
other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with
respect to a particular matter, any other officer of the Trustee to whom
such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended, as in effect on the date hereof, except as provided in Sections 9.1
and 9.6.
"Trustee" means the party named as such in the first paragraph of
this Indenture, not in its individual capacity but solely as Trustee, until
a successor replaces it in accordance with the provisions of Article 7 and
thereafter means such successor, not in its individual capacity but solely
as Trustee.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which obligations (in the case of clause (i) or clause (ii)) are
not callable or redeemable at the option of the issuer thereof, and shall
also include (iii) a depository receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
"Voting Stock" means, with respect to any Person, Capital Stock of
any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person (irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the happening
of any contingency).
"Yield to Maturity" means with respect to any Security, the yield
to maturity on such Security calculated at the time of issuance thereof or,
if applicable, at the most recent redetermination of interest on such
Security, and calculated in accordance with the constant interest method or
such other method as is specified in the terms of such Security established
pursuant to Section 2.3.
SECTION 1.2 Other Definitions. Each of the following terms is
defined in the Section set forth opposite such term:
Term Section
---- -------
Authenticating Agent 2.2
Bankruptcy Law 6.1
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.14
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
record date 2.4
Registrar 2.5
Required Currency 10.14
Security Register 2.5
sinking fund payment date 3.5
UCC 8.2
SECTION 1.3 Incorporation by Reference of and Control by Trust
Indenture Act. Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a
part of this Indenture. 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, such imposed duties shall control. The
following terms used in this Indenture that are defined by the Trust
Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust Indenture
Act, defined by reference in the Trust Indenture Act to another statute or
defined by a rule of the Commission and not otherwise defined herein have the
meanings assigned to them therein. For purposes of Trust Indenture Act
Section 311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks
or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 1.4 Rules of Construction. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, words in the plural
include the singular and "or" is not exclusive;
(iii) "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;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated;
(v) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be construed
to include, where appropriate, the other pronouns; and
(vi) provisions apply to successive actions, events and
transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each series and the
certificate of authentication to appear thereon, if any, shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to Board Resolution or one or more
indentures supplemental hereto, in each case with such letters, numbers or
other marks of identification, insertions, omissions, substitutions, legends,
endorsements and other variations as are authorized or permitted by the
provisions of this Indenture, or may be required to comply with any law, rule
or regulation or any rule of any securities exchange or to conform to usage,
all as may consistently herewith be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless
otherwise so determined, Unregistered Securities shall have coupons attached.
Unless otherwise established pursuant to Section 2.3 for the Securities of any
series, each Registered Security shall be dated the date of its authentication
and each Unregistered Security shall be dated the date of the original issue
of such Security or any predecessor Security. The definitive Securities shall
be printed, lithographed, engraved, or produced by any combination of these
methods or in any other manner on steel engraved borders or otherwise, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof. Unless otherwise established pursuant to this Section 2.3
for the Securities of any series, the certificate of authentication to appear
on all Securities shall be substantially as follows:
CERTIFICATE OF AUTHENTICATION
This Security is one of the Securities issued pursuant to the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK, N.A.
as Trustee
By________________________________
Authorized Officer
SECTION 2.2 Execution and Authentication. Two Officers shall execute
the Securities (other than coupons) for the Company by facsimile or manual
signature in the name and on behalf of the Company. The seal of the Company,
if any, shall be reproduced on the Securities. If an Officer whose signature
is on a Security no longer holds that office at the time the Security is
authenticated, the Security shall nevertheless be valid.
The Trustee may appoint an authenticating agent acceptable to the
Company (an "Authenticating Agent") to authenticate Securities (other than any
coupons). The Authenticating Agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by any Authenticating Agent.
Unless otherwise established pursuant to Section 2.3 for the
Securities of any series, no Security (other than any coupons) shall be valid
until the Trustee or an Authenticating Agent manually signs the certificate of
authentication on the Security. Such signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series (having
attached thereto appropriate coupons, if any) executed by the Company to the
Trustee for authentication together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the written order of the Company. In
authenticating the Securities of any series, the Trustee shall be entitled to
receive prior to the first authentication of any Securities of such series,
and (subject to Article 7) shall be fully protected in relying upon, unless
and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant to which the forms and
terms of the Securities of such series were established;
(2) an Officers' Certificate setting forth the form or forms and
terms of the Securities and stating that the form or forms and terms of the
Securities of such series have been, or will be when established in
accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture;
(3) an Opinion of Counsel substantially to the effect that the form
or forms and terms of the Securities of such series have been, or will be
when established in accordance with such procedures as shall be referred to
therein, established in compliance with this Indenture and that such
Securities have been duly authorized and, when executed and authenticated
in accordance with the provisions of the Indenture and delivered to and
duly paid for by the purchasers thereof, will be valid and binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to creditors' rights generally, general principles of
equity (whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing, and such other matters as
shall be specified therein; and
(4) In the event that the forms or terms of such Securities have
been established in or pursuant to a supplemental indenture, an Opinion of
Counsel substantially to the effect that the execution and delivery of such
supplemental indenture has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery by the
Trustee, is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, moratorium and other similar
laws relating to creditors' rights generally, general principles of equity
(whether considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing, and such other matters as shall be
specified therein.
Unless the terms established pursuant to Section 2.3 for the
Securities of a series or a portion thereof provide that any such Securities
are to be issued in any form other than as Registered Global Securities, the
Company shall execute and the Trustee shall authenticate and deliver one or
more Registered Global Securities that (i) shall state the aggregate principal
amount of all of the Securities of such series issued in such form and not yet
cancelled, (ii) shall be registered in the name of the Depositary therefor or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or its custodian or pursuant to such Depositary's instructions
and (iv) shall bear a legend substantially to the following effect: "UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY."
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant
to Board Resolution or one or more indentures supplemental hereto, prior to
the initial issuance of Securities of any series, subject to the last sentence
of this Section 2.3,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture and any limitation on the ability of the Company to
increase such aggregate principal amount after the initial issuance of
the Securities of that series (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, or upon redemption of, other Securities of such series and
tenor pursuant to Section 2.7, 2.8, 2.10, 3.2 or 9.4);
(3) any date or dates on which the principal of the Securities of
the series is payable (which date or dates may be fixed or extendible);
(4) any rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, any date
or dates from which such interest shall accrue, on which such interest
shall be payable and (in the case of Registered Securities) on which a
record shall be taken for the determination of Holders to whom interest
is payable and/or any method by which any such rate or rates or date or
dates shall be determined;
(5) if other than as provided in Section 4.2, any place or places
where the principal of and any interest on Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for exchange, any notices or demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and any notice to Holders may be published, and any time when
such payments are to be made at any place of payment;
(6) any right of the Company to redeem Securities of the series,
in whole or in part, at its option and any period or periods within
which, any price or prices at which and any terms and conditions upon
which Securities of the series may be so redeemed, pursuant to any
sinking fund or otherwise;
(7) any obligation of the Company to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund
or analogous provisions or at the option of a Holder thereof and any price
or prices at which, any period or periods within which, and any terms and
conditions upon which, Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(8) if other than the denominations specified in Section 2.4, the
denominations in which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities of
the series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of the series shall be payable
or, if the amount of any payments of principal of and/or interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency other than that in which the Securities of the series
are denominated, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America,
the currency or currencies, including composite currencies, in which
payment of the principal of (and premium, if any) and interest on the
Securities of the series shall be payable, and the manner in which any
such currencies shall be valued against other currencies in which any
other Securities shall be payable;
(12) if other than as Registered Global Securities, whether the
Securities of the series or any portion thereof will be issuable as
Registered Securities or Unregistered Securities (with or without coupons),
or any combination of the foregoing, any restrictions applicable to the
offer, sale or delivery of Unregistered Securities or the payment of
interest thereon and, if other than as provided herein, any terms upon
which Unregistered Securities of any series may be issued in exchange for
Registered Securities of such series and tenor provided, however, that
Unregistered Securities shall not be issued in exchange for Registered
Securities, including Registered Securities that were issued in exchange
for Unregistered Securities;
(13) any obligation of the Company to pay additional amounts on the
Securities of the series in respect of any tax, assessment or governmental
charge withheld or deducted and any right of the Company to redeem such
Securities rather than pay such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions;
(15) if other than the Person acting as Trustee, any Agent
authenticating the Securities of the series;
(16) any provisions for the defeasance of any Securities of the
series in addition to, in substitution for or in modification of the
provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of any
Depositary for such Registered Global Security or Securities other than
The Depository Trust Company and any circumstances other than those set
forth in Section 2.7 in which any Person may have the right to obtain
Registered Securities in exchange therefor;
(18) any provisions for Events of Default applicable to any
Securities of the series in addition to, in substitution for or in
modification of the provisions of Section 6.1;
(19) any provisions for covenants applicable to any Securities of
the series in addition to, in substitution for or in modification of the
provisions of Article 4; and
(20) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto, shall be substantially identical, except as to principal amount
and, in the case of Registered Securities, as to date of authentication and
payee, and except as may otherwise be provided by or pursuant to the Board
Resolution or indenture supplemental hereto referred to above.
Notwithstanding the proceeding sentence, all Securities of any one series
need not be issued at the same time and may be issued from time to time, if
so provided by or pursuant to such Board Resolution or such indenture
supplemental hereto, and any forms and any terms of such Securities may be
determined from time to time prior to the issuance thereof by procedures
established by or pursuant to such Board Resolution or supplemental
indenture.
SECTION 2.4 Denominations and Interest Payments. The Securities
shall be issuable as Registered Securities or Unregistered Securities in
denominations established pursuant to Section 2.3 or, if not so
established, in denominations of $1,000 and any integral multiple thereof
for Registered Securities and in denominations of $10,000 and $100,000 for
Unregistered Securities.
The Securities of each series shall bear interest, if any, from the
date, and such interest and shall be payable on the dates, established
pursuant to Section 2.3 for the Securities of such series.
The person in whose name any Registered Security is registered at
the close of business on any record date with respect to any interest
payment date for such Security shall be entitled to receive the interest,
if any, payable on such interest payment date notwithstanding any transfer
or exchange of such Registered Security subsequent to the record date and
prior to such interest payment date, except to any extent the Company shall
default in the payment of such interest, in which case the provisions of
Section 2.13 shall apply. The term "record date" as used with respect to
any interest payment date (except a date for payment of defaulted interest)
for any Registered Security shall mean the date specified as such in the
terms of such Registered Security established pursuant to Section 2.3, or,
if no such date is so established, the fifteenth day next preceding such
interest payment date, whether or not such record date is a Business Day.
Whenever it is necessary to compute an amount of interest in respect
of any Security for a period of less than a full year, such interest shall be
calculated on the basis of a 360-day year consisting of twelve months of 30
days each and, in the case of an incomplete month, the actual number of days
elapsed, except as otherwise established pursuant to Section 2.3 for any
Security.
SECTION 2.5 Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent").
The Registrar shall keep a register of the Registered Securities of each
series and of their registration, transfer and exchange (the "Security
Register"). The Company may appoint one or more additional or substitute
Paying Agents or Registrars with respect to the Securities of any series,
or remove any Agent, without notice to any Person (other than the Trustee).
The terms "Paying Agent" and "Registrar" includes all Persons appointed as
such.
Whenever no other Person is acting as Registrar or Paying Agent with
respect to the Securities of any series, the Person then acting as Trustee
shall also act as such Registrar or Paying Agent. The Company or any
Affiliate of the Company may act as Paying Agent or Registrar. If, at any
time, the Person acting as the Trustee is not the Registrar with respect to
the Registered Securities of any series, such Registrar shall make available
to the Trustee ten days prior to each interest payment date for such
Securities and at such other times as the Trustee may reasonably request the
names and addresses of the Holders as they appear in the Security Register for
such Securities.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not later than
10:00 a.m. in the place of payment on each due date of any principal or
interest on any Securities, or at such other time as shall be established
pursuant to Section 2.3 for any Securities with respect to such Securities,
the Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such principal or interest. The Company
shall require each Paying Agent with respect to the Registered Securities
of any series other than the Person acting as the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying
Agent for the payment of principal of and interest on such Securities and
shall promptly notify the Trustee of any default by the Company in making
any such payment. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and account for any funds
disbursed, and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for
any funds disbursed. Upon doing so, the Paying Agent (as such) shall have
no further liability for the money so paid over to the Trustee. If the
Company or any Affiliate of the Company acts as Paying Agent, it will
segregate and hold in a separate trust fund for the benefit of the Holders
thereof a sum of money sufficient to pay such principal or interest so
becoming due until such sum of money shall be paid to such Holders or
otherwise disposed of as provided in this Indenture, and will promptly
notify the Trustee in writing of its failure to act as required by this
Section 2.6.
SECTION 2.7 Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Company maintained for such purpose and upon
payment, if the Company shall so require, of the sum hereinafter provided.
If the Securities of any series are issued in both registered and
unregistered form, except as otherwise established pursuant to Section 2.3
for the Securities of such series, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company maintained for such
purpose, with, in the case of Unregistered Securities that were issued with
coupons appertaining, all such unmatured coupons and all such matured
coupons in default, and upon payment, if the Company shall so require, of
the sum hereinafter provided. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is
entitled to receive. Except as otherwise established pursuant to Section
2.3 for the Securities of such series, no Unregistered Securities may be
issued in exchange for Registered Securities and no Registered Securities,
including Registered Securities received in exchange for Unregistered
Securities, may be issued in exchange for any Unregistered Securities.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
The Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge that may be imposed in connection
with any exchange or registration of transfer of Securities (other than such
transfer tax or similar charge imposed upon exchanges pursuant to Section
2.10, 3.3 or 9.4). No service charge shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.7, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security of any series may not be
transferred except as a whole by the Depositary therefor to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary
eligible under applicable law with respect to such Registered Global
Securities. If a successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company will execute, and the Trustee, upon receipt of the Company's order
for the authentication and delivery of definitive Registered Securities of
such series, will authenticate and deliver, Registered Securities of such
series and tenor, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of such Registered Global Securities, in
exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion determine
that any Registered Global Securities of any series shall no longer be
maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series and tenor in definitive registered form
without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of such Registered Global Securities,
in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.2 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
During the continuance of an Event of Default and in such other
circumstances, if any, as may be established pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized denominations
as requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.7 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such Agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any Agent
shall issue any Registered Security in exchange for an Unregistered
Security if such exchange would result in adverse Federal income tax
consequences to the Company under then applicable United States Federal
income tax laws and any Registered Security issued in exchange for an
Unregistered Security will be subject to the provisions of the United
States Federal income tax laws and regulations applicable to debt
securities in effect at the time of such exchange. The Trustee and any
Agent shall be entitled to rely on an Officers' Certificate or an Opinion
of Counsel in determining such result and, in the absence thereof, shall
assume without inquiry that any such exchange would cause such adverse tax
consequences.
The Registrar shall not be required (i) to register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the transmission of a notice
of redemption of Securities of such series selected for redemption under
Section 3.2 and ending at the close of business on the day of such
transmission or (ii) to register the transfer of or exchange any Security
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
SECTION 2.8 Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims
that its Security of any series has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of such series and tenor and principal amount, bearing
a number not contemporaneously outstanding. If required by the Trustee or
the Company, an indemnity bond must be furnished that is sufficient in the
judgment of both the Trustee and the Company to protect the Company, the
Trustee and any Agent from any loss that any of them may suffer if a
Security is replaced. The Company may charge such Holder for its expenses
and the expenses of the Trustee (including without limitation attorneys'
fees and expenses) in replacing a Security. In case any such mutilated,
defaced, lost, destroyed or wrongfully taken Security has become or is
about to become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide holder
in due course.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds, or if the Company or its Affiliate (if the Company or its
Affiliate shall act as the Paying Agent) sets aside and segregates in trust,
on the maturity date or any redemption date or date for repurchase of the
Securities, money sufficient to pay Securities payable or to be redeemed or
repurchased on that date, then on and after that date such Securities cease to
be outstanding and interest on them shall cease to accrue; provided, however,
that, if such Securities or portions thereof are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture, or provision
therefor satisfactory to such Trustee has been made.
A Security does not cease to be outstanding because the Company or
one of its Affiliates holds such Security, 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, Securities owned by the
Company or any Affiliate of the Company shall be disregarded and deemed not
to be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. The
principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration pursuant to Section 6.2. Any Securities
so owned which have been pledged in good faith by the Company, or by any
Affiliate of the Company, as security for loans or other obligations,
otherwise than to another such Affiliate of the Company, shall be deemed to
be outstanding if the pledgee establishes to the satisfaction of the
Trustee that the pledgee is entitled pursuant to its pledge agreement and
is free to exercise in its discretion the right to vote such securities,
uncontrolled by the Company or by any such Affiliate.
SECTION 2.10 Temporary Securities. Until definitive Securities of
any series are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such
temporary Securities at the office or agency of the Company designated for
such purpose, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of such
series and tenor and authorized denominations. Until so exchanged, the
temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 2.11 Cancellation. The Company at any time may deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
Any Agent shall forward to the Trustee any Securities surrendered to it for
transfer, exchange or payment. The Trustee shall cancel and destroy all
Securities surrendered for transfer, exchange, payment or cancellation and
shall deliver certificates of destruction to the Company, all in accordance
with its customary practices. The Company may not issue new Securities to
replace Securities it has paid in full or delivered to the Trustee for
cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption, repurchase or exchange as a convenience to Holders;
provided that any such notice shall state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any such notice.
SECTION 2.13 Defaulted Interest. If the Company defaults in a
payment of interest on any Securities of any series, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds
sufficient to pay, the defaulted interest plus (to the extent lawful) any
interest payable on the defaulted interest (as may be specified in the
terms established pursuant to Section 2.3 for the Securities of such
series) to the Persons who are Holders on a subsequent special record date,
which shall mean the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the
Company shall mail to each Holder and to the Trustee a notice that states
the special record date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.14 Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer and subject to Section 2.13, the
Company, the Trustee and any Agent may deem and treat the Person in whose
name any Security shall be registered upon the register of Securities kept
by the Registrar as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of the
ownership or other writing thereon made by anyone other than the Company or
any Registrar) for the purpose of receiving payments or principal of or
interest on such Security and for all other purposes; and none of the
Company, the Trustee and any Agent shall be affected by any notice to the
contrary.
None of the Company, the Trustee and any Agent shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Registered
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 2.15 Designation. The indebtedness evidenced by the
Securities is hereby irrevocably designated as "senior indebtedness" or such
other term denoting seniority for the purposes of any future indebtedness of
the Company that the Company makes subordinate to any senior indebtedness or
such other term denoting seniority.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement
of Securities of a series, except as otherwise specified pursuant to
Section 2.3 for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions. Notice of
redemption shall be given by the Company, or at the Company's request, by
the Trustee in the name and at the expense of the Company, to the Holders
of Registered Securities to be redeemed by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not
more than 60 days prior to the date fixed for redemption to such Holders at
their last addresses as they shall appear upon the Security Register.
Notice of redemption to the Holders of Unregistered Securities to be
redeemed who have filed their names and addresses with the Trustee pursuant
to Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing
notice of such redemption, by first class mail, postage prepaid, at least
30 days and not more than 60 days prior to the date fixed for redemption,
to such Holders at such addresses as were so furnished to the Trustee (and,
in the case of any such notice given by the Company, the Trustee shall make
such information available to the Company for such purpose). Notice of
redemption to all other Holders of Unregistered Securities to be redeemed
as a whole or in part shall be published in an Authorized Newspaper in The
City of New York or, with respect to any Security the interest on which is
based on the offered quotations in the interbank Eurodollar market for
dollar deposits, in an Authorized Newspaper in London, and in any other
place of payment established pursuant to Section 2.3 for such Unregistered
Security, in each case, once in each of three successive calendar weeks,
the first publication to be not less than 30 days nor more than 60 days
prior to the date fixed for redemption. Any notice which is mailed or
published in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to the Holder
of any Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other
Security.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with coupons attached thereto, of
all coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, or such other terms of such
Securities as shall be specified in such notice, that interest accrued to
the date fixed for redemption will be paid as specified in such notice and
that, unless the Company defaults in making such redemption payment, on and
after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed
in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series and tenor in principal amount equal
to the unredeemed portion thereof will be issued.
On or before 10:00 a.m. (or at such other time as shall be
established pursuant to Section 2.3) in the place of payment on the
redemption date specified in the notice of redemption given as provided in
this Section, or at such other time as shall be established pursuant to
Section 2.3 for any Securities with respect to such Securities, the Company
will deposit with the Trustee or with one or more Paying Agents (or, if the
Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.6) an amount of money sufficient to redeem
on the redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If all of the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 10 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first paragraph of this
Section 3.2 an Officers' Certificate stating that all such Securities are
to be redeemed. If less than all the outstanding Securities of a series
are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 (or such
shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating the aggregate principal amount of such Securities to be
redeemed. In case of a redemption at the election of the Company prior to
the expiration of any restriction on such redemption, the Company shall
deliver to the Trustee, prior to the giving of any notice of redemption to
Holders pursuant to this Section, an Officers' Certificate stating that
such redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after such date (unless the Company shall
default in the payment of such Securities at the redemption price, together
with interest accrued to such date) interest on the Securities or portions
of Securities so called for redemption shall cease to accrue, and the
unmatured coupons, if any, appertaining thereto shall be void and, except
as provided in Sections 7.11 and 8.4, such Securities shall cease from and
after the date fixed for redemption to be entitled to any benefit under
this Indenture, and the Holders thereof shall have no right in respect of
such Securities except the right to receive the redemption price thereof
and unpaid interest to the date fixed for redemption. On presentation and
surrender of such Securities at a place of payment specified in said
notice, together with all coupons, if any, appertaining thereto maturing
after the date fixed for redemption, said Securities or the specified
portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with interest accrued thereon to the
date fixed for redemption; provided that payment of interest becoming due
on or prior to the date fixed for redemption shall be payable in the case
of Securities with coupons attached thereto, to the Holders of the coupons
for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such
on the relevant record date subject to the terms and provisions of Sections
2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security, or at any rate for defaulted interest
specified in the form or terms of such Security established pursuant to
Section 2.1 or 2.3.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee, if there be furnished
to each of them such security or indemnity as they may require to save each
of them harmless, or the redemption price may be reduced by an amount equal
to the face amount of all such missing coupons.
Upon presentation of any Security of any series redeemed in part
only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized officer
of the Company and delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of
record and beneficially by, and not pledged or hypothecated by, either (a)
the Company or (b) an entity specifically identified in such written
statement as an Affiliate of the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable
to the Trustee, the Company will deliver to the Trustee an Officers'
Certificate (a) specifying the portion of the mandatory sinking fund
payment to be satisfied by payment of cash and the portion to be satisfied
by credit of specified Securities of such series and the basis for such
credit, (b) stating that none of the specified Securities of such series
has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Company intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the
Company intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to
be delivered to the Trustee in order for the Company to be entitled to
credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.11 to
the Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate shall
be irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Company, on or before any such sixtieth day, to
deliver such Officers' Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof and (ii)
that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 or a lesser sum if the Company shall so request with
respect to the Securities of any series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities
of such series at the sinking fund redemption price thereof together with
accrued interest thereon to the date fixed for redemption. If such amount
shall be $50,000 or less and the Company makes no such request then it
shall be carried over until a sum in excess of $50,000 is available. The
Trustee shall select, in the manner provided in Section 3.2, for redemption
on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be, and
shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption
under this Section if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 60
days prior to the sinking fund payment date as being owned of record and
beneficially by either (a) the Company or (b) an entity specifically
identified in such Officers' Certificate as an Affiliate of the Company.
The Trustee, in the name and at the expense of the Company (or the Company,
if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially
the manner provided in Section 3.2 (and with the effect provided in Section
3.3) for the redemption of Securities of such series in part at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. in the place of payment on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Company a sum sufficient for such redemption. Except as aforesaid, any moneys
in the sinking fund for such series at the time when any such Default or Event
of Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed
to have been collected under Article 6 and held for the payment of all
Securities of such Series. In case such Event of Default shall have been
waived as provided in Section 6.4 or the Default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date
in accordance with this Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities
with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of
Registered Securities so agree, payments of interest on, and any portion of
the principal of, such Holder's Registered Securities (other than interest
payable at maturity or on any redemption or repayment date or the final
payment of principal on a Security) shall be made by the Paying Agent
directly to the Holder of such Securities by Federal funds wire transfer or
otherwise if the Holder has delivered written instructions to the Paying
Agent at least 15 days prior to such payment date requesting that such
payment will be so made and designating the bank account to which such
payments shall be so made and in the case of payments of principal has
surrendered such Security to the Trustee in exchange for a Security or
Securities of the same series and tenor aggregating the same principal
amount as the unredeemed principal amount of the Securities surrendered.
The Trustee shall be entitled to rely on the last instruction delivered by
the Holder pursuant to this Section 4.1 unless a new instruction is
delivered 15 days prior to a payment date.
The Company shall pay interest on overdue principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company hereby initially designates the office of BancBoston
Trust Company of New York, located in the Borough of Manhattan, The City of
New York, as such office or agency of the Company. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office.
The Company will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange
on which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining
thereto may be presented for payment. No payment on any Unregistered
Security or coupon will be made upon presentation of such Unregistered
Security or coupon at an agency of the Company within the United States nor
will any payment be made by transfer to an account in, or by mail to an
address in, the United States unless, pursuant to applicable United States
laws and regulations then in effect, such payment can be made without
adverse tax consequences to the Company. Notwithstanding the foregoing, if
full payment in United States Dollars ("Dollars") at each agency maintained
by the Company outside the United States for payment on such Unregistered
Securities or coupons appertaining thereto is illegal or effectively
precluded by exchange controls or other similar restrictions, payments in
Dollars of Unregistered Securities of any series and coupons appertaining
thereto which are payable in Dollars shall be made at an agency of the
Company maintained in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
Unless otherwise established pursuant to Section 2.3 with respect to
the Securities of any series, the time of each payment by the Company to the
Trustee or any Agent under this Indenture shall be at 10:00 A.M. in the place
of payment thereof.
SECTION 4.3 Corporate Existence. Subject to Article 5, the
Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its material
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such material right or
franchise if the preservation thereof is no longer desirable in the conduct
of the business of the Company or the loss thereof is not materially
adverse to the Holders of the Securities.
SECTION 4.4 Payment of Taxes and Other Claims. The Company will pay
or discharge or cause to be paid or discharged, before any penalty accrues
thereon, all material taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment or charge whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 4.5 Limitation on Liens. (a) The Company will not, nor will
it permit any Subsidiary to, (i) create, issue, incur, assume or guarantee any
Debt, if such Debt is secured by a Lien upon, or (ii) directly or indirectly
secure any outstanding Debt of the Company or any Subsidiary by a Lien upon,
any Principal Property of the Company or any Subsidiary now owned or hereafter
acquired by the Company or such Subsidiary, without in any such case
effectively providing, concurrently with the creation, issuance, incurrence,
assumption or guarantee of any such Debt, or the granting of security with
respect to any such outstanding Debt, that all outstanding Securities
(together with, if the Company shall so determine, any other Debt of or
guaranteed by the Company or any Subsidiary ranking equally with the
Securities then existing or thereafter created) shall be secured equally and
ratably with (or prior to) such Debt; provided, however, that the foregoing
restriction shall not apply to:
(1) Liens on any Principal Property acquired after the date
hereof which are created or assumed contemporaneously with, or within
180 days after, such acquisition solely for the purpose of securing Debt
(including, but not limited to, deferred purchase price obligations)
representing, or incurred to finance, refinance or refund, the purchase
price or acquisition cost (including any debt assumed in connection with
such acquisition) of the Principal Property subject thereto; provided
that (a) the principal amount of the Debt secured by any such Lien does
not exceed 100% of the purchase price or acquisition cost of the
Principal Property subject thereto and (b) no such Lien extends to or
covers any Principal Property other than such Principal Property and any
improvements on or rights appurtenant thereto acquired in such
transaction;
(2) Liens on any Principal Property which are created for the
purpose of financing the construction of an improvement on such Principal
Property, provided that (a) the principal amount of the Debt secured by any
such Lien does not exceed 100% of the cost of the improvement related to
such Lien, (b) no such Lien extends to or covers any Principal Property
other than such Principal Property and any improvements on or rights
appurtenant thereto and (iii) the aggregate amount of Debt secured by such
Liens shall not exceed $10,000,000 at any time;
(3) Liens on any Principal Property of any corporation existing at
the time such corporation becomes a Subsidiary after the date hereof;
(4) Liens on any Principal Property in existence on the date
hereof;
(5) Liens to secure Debt of a Subsidiary to the Company or to
another Subsidiary;
(6) Liens in favor of the United States of America, any of its
territories or possessions, or any State thereof, or any department,
agency, instrumentality or political subdivision of any thereof, or any
department, agency or instrumentality of any such political subdivision,
to secure partial progress, advance or other payments pursuant to any
contract or statute;
(7) pledges or deposits incurred in connection with workers'
compensation, unemployment insurance and other social security and
similar legislation and deposits securing Debt to insurance carriers
under insurance or self-insurance arrangements;
(8) Liens incurred in connection with taxes not yet due or which
are being contested in good faith by appropriate proceedings, provided
that adequate reserves Company or its Subsidiaries, as the case may be,
in conformity with GAAP;
(9) any materialmen's, carriers', mechanics', workmen's
repairmen's or other like Liens arising in the ordinary course of
business in respect of obligations which are not yet overdue or which
are being contested in good faith by appropriate proceedings;
(10) Liens arising in connection with surety, appeal and similar
bonds incidental to the conduct of litigation;
(11) Liens arising in connection with bid, performance or similar
bonds which do not exceed in the aggregate $5,000,000;
(12) easements, rights of way, general real estate taxes not yet due
and payable, municipal and zoning restrictions, restrictions on the use of
real property and defects and irregularities in the title thereto; and
(13) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements), in
whole or in part, of any Lien referred to in the foregoing clauses (1)
through (12), inclusive, or the Debt secured thereby; provided, however,
that (a) such extension, renewal, substitution or replacement shall be
limited to all or part of the Principal Property which secured the Lien
so extended, renewed, substituted or replaced (plus improvements on such
Principal Property) prior to such extension, renewal, substitution or
replacement and (b) in the case of clauses (2) and (3) above, the Debt
secured by such Lien at such time is not increased.
(b) Notwithstanding the provisions of subsection (a) of this Section
4.5, the Company or any Subsidiary may (without equally and ratably securing
the Securities) create, issue, incur, assume or guarantee secured Debt of the
Company which, together with all other such secured Debt of the Company and
its Subsidiaries (that is, not including secured Debt of the Company and its
Subsidiaries permitted in accordance with Section 4.5(a)) outstanding at such
time, does not at such time exceed 10% of Consolidated Net Tangible Assets of
the Company.
SECTION 4.6 Certificate to Trustee. Within 120 days after the close
of each fiscal year of the Company ending after the date hereof, the Company
will file with the Trustee a certificate signed by the Chairman of the Board
of Directors, the Chief Executive Officer, the President or any Vice President
and by the Chief Financial Officer, the Treasurer, the Controller or any
Assistant Treasurer or Assistant Controller or the Secretary or any Assistant
Secretary of the Company (provided, that one such signatories shall be the
Company's principal executive officer, principal financial officer or
principal accounting officer), as to such Officers' knowledge of the Company's
compliance with all conditions and covenants under this Indenture (without
regard to any period of grace or requirement of notice provided hereunder) and
in the event any Default of the Company exists, such Officers shall specify
the nature of such Default.
SECTION 4.7 Reports by the Company. The Company covenants to (a)
file with the Trustee, within 15 days after the Company is required to file
the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act (or copies of such portions thereof as may be prescribed by
the Commission by rules and regulations); or, if the Company is not
required to file with the Commission information, documents or reports
pursuant to either Section 13 or Section 15(d) of the Exchange Act, then
the Company will file with the Trustee and will file with the Commission,
in accordance with rules and regulations prescribed by the Commission, such
of the supplementary and periodic information, documents and reports
required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed in such rules and regulations; (b) file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed
from time to time by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the conditions
and covenants provided for in this Indenture as may be required by such
rules and regulations, including, in the case of annual reports, if
required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Sections
10.2 and 10.3, as to compliance with conditions or covenants, compliance
with which is subject to verification by accountants; (c) mail, or cause
the Trustee to mail, to the Holders of the Securities, as the names and
addresses of such Holders appear on the register for Securities, such
information, documents and reports required to be filed with the Trustee
pursuant to the provisions of paragraphs (a) and (b) of this Section 3.3 as
may be required by rules and regulations prescribed by the Commission; and
(d) remain subject to the informational filing requirements of the
Commission pursuant to the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company shall not
consolidate or merge with any other Person or sell, convey, assign, transfer,
lease or otherwise dispose of all or substantially all its properties and
assets as an entirety in one transaction or a series of transactions to any
Person, unless:
(1) either (a) the Company shall be the continuing Person or (b)
such Person shall be a corporation organized and validly existing under
the laws of the United States of America or any State thereof or the
District of Columbia and shall expressly assume by a supplemental
indenture all of the Company's obligations under the Securities and
under this Indenture;
(2) immediately before and after such transaction or each element
of such series, no Default or Event of Default or Event of Default shall
have occurred and be continuing; and
(3) giving effect to such transaction will not cause an event of
default under any mortgage, bond, debenture, note or other instrument or
obligation that the Company or any Subsidiary of the Company is a party to
or bound by.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
SECTION 5.2 Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, assignment, transfer, lease or other disposition of
all or substantially all of the properties and assets of the Company in
accordance with Section 5.1, the successor Person formed by such consolidation
or into or with which the Company is merged or to which such sale, conveyance,
assignment, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; and, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default" shall occur
with respect to the Securities of any series if there shall occur:
(a) Any failure to pay any installment of interest on any Securities
of such series, when and as the same shall become payable as therein
expressed, and such failure shall continue for a period of 30 days (it
being understood that if the entire amount of such payment of interest is
irrevocably deposited by the Company with the Trustee, or with another
Paying Agent duly appointed hereunder, before the expiration of such period
of 30 days, such Default shall no longer be considered to be continuing
under this Indenture); or
(b) Any failure to pay the principal of any Securities of such
series when and as the same shall become due and payable as therein
expressed, whether at the stated maturity thereof or otherwise; or
(c) Any failure to perform or observe any other of the covenants,
conditions or agreements on the part of the Company to be performed or
observed pursuant to this Indenture or in the Securities of such series,
(other than a covenant, condition or agreement a Default in whose
performance or whose breach is elsewhere in this Section 6.1 specifically
dealt with) and such failure shall continue for a period of 60 days after
written notice specifying the failure and that the same is a Default and
requiring the Company to remedy such failure shall have been given to the
Company from the Trustee or to the Company and to the Trustee from the
Holders of not less than 25% of the principal amount of the Securities of
such series then outstanding; or
(d) Any default or event of default, as defined in any one or more
mortgages, indentures or instruments under which there may be issued, or by
which there may be secured or evidenced, indebtedness of the Company or any
Subsidiary, whether such indebtedness now exists or shall hereafter be
created, and the holders of such indebtedness shall have declared an
aggregate amount in excess of $20,000,000 thereof to be due and payable
prior to the date on which it would otherwise have become due and payable
and such declaration shall not have been cured, waived, rescinded or
annulled in accordance with the provisions of such mortgage, indenture or
instruments or such indebtedness shall not have been discharged within a
period of 30 days; or
(e) The Company or any Material Subsidiary shall file a petition
commencing a voluntary case under any provision of Title 11, United States
Code or any similar Federal or state law for the relief of debtors (the
"Bankruptcy Law"); or the Company or any Material Subsidiary shall file a
petition or answer or consent seeking reorganization, arrangement,
adjustment, or composition under any Bankruptcy Law, or shall consent to
the filing of any such petition, answer, or consent; or the Company or any
Material Subsidiary shall appoint, or consent to the appointment of, a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of the Company or any Material
Subsidiary or of any substantial part of its property or shall make an
assignment for the benefit of creditors; or
(f) Any order for relief against the Company or any Material
Subsidiary shall have been entered by a court having jurisdiction in the
premises under any provision of Bankruptcy Law and such order shall have
continued undischarged or unstayed for a period of 60 days; or a decree
or order by a court having jurisdiction in the premises shall have been
entered approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of the Company or any Material
Subsidiary under any Bankruptcy Law, and such decree or order shall have
continued undischarged or unstayed for a period of 60 days; or a decree
or order of court having jurisdiction in the premises for the
appointment of a custodian, receiver, similar official in bankruptcy or
insolvency of the Company or any Material Subsidiary or of any
substantial part of its property, or for the winding up or liquidation
of its affairs, shall have been entered, and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days;
or
(g) Any other Event of Default established pursuant to Section 2.3
for the Securities of such series.
SECTION 6.2 Acceleration. (a) If an Event of Default described in
clauses (a), (b), (c), (d) or (g) of Section 6.1 with respect to the
Securities of any series then outstanding occurs and is continuing, then, and
in each and every such case, except for any Securities the principal of which
shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Securities of any
such affected series then outstanding hereunder (each such series treated as a
separate class) by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.3) of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
(b) If an Event of Default described in clause (e) or (f) of
Section 6.1 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
Section 2.3) of all the Securities then outstanding of such affected
series, except for any Securities the principal of which shall have already
become due and payable, and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by
any Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to Section 2.3) of the
Securities of any series (or of all the Securities, as the case may be)
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 have paid or shall have
deposited with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of each such series (or of all the
Securities, as the case may be) and the principal of any and all Securities
of each such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at
the rate specified therefor in such Securities or, if not so specified, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each
such series to the date of such payment or deposit) and such amount as
shall be sufficient to cover all amounts owing the Trustee under Section
7.7, and if any and all Events of Default under the Indenture, other than
the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as
provided herein, then and in every such case the Holders of a majority in
aggregate principal amount of all the then outstanding Securities of each
such series that have been accelerated (each such series voting as a
separate class), by written notice to the Company and to the Trustee, may
waive all defaults with respect to each such series (or with respect to all
the Securities, as the case may be) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.3 Other Remedies. If an Event of Default with respect to
the Securities of any series occurs and is continuing, the Trustee may pursue,
in its own name or as trustee of an express trust, any available remedy by
proceeding at law or in equity to collect the payment of principal of and
interest on the Securities of such series or to enforce the performance of any
provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections 6.2, 6.7
and 9.2, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
Section 2.3) of the outstanding Securities of each series affected (each
such series voting as a separate class), by notice to the Trustee, may
waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the
payment of principal of or interest on any Security as specified in clause
(a) or (b) of Section 6.1 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1 and
7.2(v), the Holders of at least a majority in aggregate principal amount
(or, if any Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof established
pursuant to Section 2.3) of the outstanding Securities of each series
affected (each such series voting as a separate class) may direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that
the Trustee may refuse to follow any direction that conflicts with law or
this Indenture, that may involve the Trustee in personal liability or that
the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders not joining in the giving of such direction; and provided
further, that the Trustee may take any other action it deems proper that is
not inconsistent with any directions received from Holders of Securities
pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Securities of such
series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of such series
have not given the Trustee a direction that is inconsistent with such
written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other
Holder.
SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a
Security to receive payment of principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of principal or interest
specified in clause (a) or (b) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount (or such portion thereof as
specified in the terms established pursuant to Section 2.3 of Original Issue
Discount Securities) of principal of, and accrued interest remaining unpaid
on, together with interest on overdue principal of, and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest on, the Securities of such series, in each case at the rate or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities or, if not so specified, at the same rate as the rate of
interest or Yield to Maturity (in such case) specified for such Securities,
and such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.7) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it under Section 7.7. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of the Securities of any
series shall be applied in the following order at the date or dates fixed by
the Trustee and, in case of the distribution of such moneys on account of
principal or interest, upon presentation of the several Securities or any
coupons appertaining to such Securities in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series and tenor in reduced principal amounts in exchange
for the presented Securities of such series and tenor if only partially paid,
or upon surrender thereof if fully paid, provided, that when interest alone is
to be paid on a Registered Security, the Trustee at its election may waive
presentation of the Securities:
FIRST: To the payment of all amounts due the Trustee under Section
7.7 applicable to the Securities of such series in respect of which moneys
have been collected;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest, at the
rate specified therefor in such Securities or, if not so specified, at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest, at the rate specified therefor in such Securities or, if not so
specified, at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Securities of such
series, then to the payment of such principal and interest or Yield to
Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal, or
of any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid interest
or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such
Holder, then, and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Company, Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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, in
either case in respect to the Securities of any series, a court may require
any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant (other
than the Trustee) in the suit having due regard to the merits and good faith
of the claims or defenses made by the party litigant. This Section 6.12 does
not apply to a suit by a Holder pursuant to Section 6.7 or a suit by any
Holder or group of Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders
is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article 6 or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act and as set forth
herein. Notwithstanding the foregoing, no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, unless it
receives indemnity satisfactory to it against any loss, liability or
expense. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust Indenture
Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers'
Certificate, Opinion of Counsel (or both), statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall
conform to Section 10.3. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such certificate
or opinion. Subject to Sections 7.1 and 7.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by
an Officers' Certificate delivered to the Trustee, and such certificate,
in the absence of negligence or bad faith on the part of the Trustee,
shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith
thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, unless such Holders shall have offered to
the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with
such request or direction;
(vi) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
its rights or powers or for any action it takes or omits to take in
accordance with the direction of the Holders in accordance with Section
6.5 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture;
(vii) 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; and
(viii) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, Officers' Certificate, Opinion of Counsel, Board
Resolution, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do
by the Holders of not less than a majority in aggregate principal amount of
the Securities of all series affected then outstanding; provided that, if
the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require indemnity satisfactory to it against such expenses
or liabilities as a condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311.
SECTION 7.4 Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall
be taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the
Trustee nor any of its agents (i) makes any representation as to the validity
or adequacy of this Indenture or the Securities and (ii) shall be accountable
for the Company's use or application of the proceeds from the Securities.
SECTION 7.5 Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing the Trustee shall give to
each Holder of Securities of such series notice of such Default known to it
within 60 days after it occurs (i) if any Unregistered Securities of such
series are then outstanding, to the Holders thereof, by publication at least
twice in an Authorized Newspaper in London and in any other place of payment
for Unregistered Securities of such series and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless such Default shall have been cured
or waived before the mailing or publication of such notice; provided, however,
that, except in the case of a Default in the payment of the principal of or
interest on any Security, the Trustee shall be protected in withholding such
notice if Responsible Officer in good faith determines that the withholding of
such notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60 days after each
May 15, beginning with May 15, 1997, the Trustee shall mail to each Holder as
and to the extent provided in Trust Indenture Act Section 313(c) a brief
report dated as of such May 15, if required by Trust Indenture Act Section
313(a).
SECTION 7.7 Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing from time to time
for its services. The compensation of the Trustee shall not be limited by any
law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee without negligence
or bad faith in its part. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents, counsel and other persons
not regularly in its employ.
The Company shall indemnify each of the Trustee, any predecessor
Trustee and their officers, directors and employees, for, and hold each of
them harmless against, any loss or liability or expense incurred by any of
them without negligence or bad faith on the part of any of them arising out of
or in connection with the acceptance or administration of this Indenture, the
Securities or the trusts hereunder, or the issuance of any Securities or of
any series thereof and the performance of duties under this Indenture and the
Securities, including the costs and expenses of defending against or
investigating any claim or liability and of complying with any process served
upon any of them in connection with the exercise or performance of any of the
powers or duties of the Trustee under this Indenture and the Securities.
The obligations of the Company under this Section 7.7 to compensate
the Trustee, to indemnify the Trustee, each predecessor Trustee and their
officers, directors and employees and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture
or the rejection or termination of this Indenture under bankruptcy law. Such
additional indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities, and the
Securities are hereby subordinated to such senior claim.
SECTION 7.8 Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and an
appointment of a successor Trustee as Trustee with respect to the Securities
of any series shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of
a majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to
the Securities of any series does not deliver its written acceptance required
by the next succeeding paragraph of this Section 7.8 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
of such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series
shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.7, (i) the
retiring Trustee shall promptly transfer all property held by it as Trustee
in respect of the Securities of such series to the successor Trustee, (ii)
the resignation or removal of the retiring Trustee in respect of the
Securities of such series shall become effective and (iii) the successor
Trustee shall have all the rights, powers and duties of the Trustee in
respect of the Securities of such series under this Indenture. A successor
Trustee shall promptly mail notice of its succession to each Holder of
Securities of such series.
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 the preceding paragraph.
The Company shall promptly give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such series
to all Holders of Securities of such series. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee and the retiring Trustee shall have no liability for the acts or
omissions of any successor Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation
or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall
be the successor Trustee with the same effect as if the successor Trustee
had been named as the Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall always have a
Trustee who satisfies the requirements of Trust Indenture Act Section 310(a).
The Trustee shall have a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may
agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and
except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.1, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have been replaced or Securities of such series that
are paid pursuant to Section 4.1 or Securities of such series for whose
payment money or securities have theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.5) have been
delivered to the Trustee for cancellation and the Company has paid all
sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B) the
Company irrevocably deposits in trust with the Trustee, as trust funds
solely for the benefit of the Holders of such Securities for that purpose,
money or U.S. Government Obligations or a combination thereof sufficient
(unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without consideration of
any reinvestment, to pay principal of and interest on the Securities of
such series to maturity or redemption, as the case may be, and to pay all
other sums payable by it hereunder, (C) such deposit will not result in a
breach or violation of or constitute a default under this Indenture or any
other agreement or instrument to which the Company is a party or by which
it is bound, and (D) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture with respect to the Securities of such series
and of the Securities of such series have been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Section 7.7 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.11, 2.12, 2.14,
4.2, 7.7, 7.8, 8.4, 8.5 and 8.6 in respect of the Securities of such series
shall survive until the Securities of such series are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.7 and 8.5 in respect
of the Securities of such series shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge
of the Company's obligations under the Securities of such series and this
Indenture with respect to the Securities of such series except for those
surviving obligations specified above.
SECTION 8.2 Defeasance. The Company will be deemed to have paid and
will be discharged from any and all obligations in respect of the Securities
of any series, the provisions of this Indenture will, except as provided
below, no longer be in effect with respect to the Securities of such series,
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same and the Securities of any such series will no longer be
outstanding pursuant to Section 2.9; provided that the following conditions
shall have been satisfied:
(A) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities of
such series, for payment of the principal of and interest on the Securities
of such series, money or U.S. Government Obligations or a combination
thereof sufficient (unless such funds consist solely of money, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee)
without consideration of any reinvestment and after payment of all federal,
state and local taxes or other charges and assessments in respect thereof
payable by the Trustee, to pay and discharge the principal of and accrued
interest on the outstanding Securities of such series to maturity or
earlier redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(C) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(D) the Company shall have delivered to the Trustee (1) either (x)
a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes
as a result of the Company's exercise of its option under this Section
8.2 and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if
such option had not been exercised or (y) an Opinion of Counsel to the
same effect as the ruling described in clause (x) above and (2) an
Opinion of Counsel to the effect that the Holders of the Securities of
such series have a valid security interest in the trust funds subject to
no prior liens under the Uniform Commercial Code, as in effect in each
applicable jurisdiction (the "UCC"); and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2 of the Securities of such series have
been complied with.
The Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7,
2.8, 2.11, 2.12, 2.14, 4.2, 7.7, 7.8, 8.4, 8.5 and 8.6 with respect to the
Securities of such series shall survive until such Securities are no longer
outstanding. Thereafter, only the Company's obligations in Sections 7.7 and
8.5 shall survive.
SECTION 8.3 Covenant Defeasance. The Company may omit to comply with
any term, provision or condition set forth in Sections 4.3, 4.4 or 4.5 (or any
other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.3 which may by its
terms be defeased pursuant to this Section 8.3), and such omission shall be
deemed not to be an Event of Default under clauses (c) or (f) of Section 6.1,
with respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities of
such series, for payment of the principal of and interest, if any, on the
Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee) without consideration of any reinvestment and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and discharge
the principal of and interest on the outstanding Securities of such series
to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(iii) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens under
the UCC and (B) such Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.3 of the Securities of such
series have been complied with.
SECTION 8.4 Application of Trust Money. Subject to Section 8.5, the
Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case
may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the
payment of principal of and interest on the Securities of such series; but
such money need not be segregated from other funds except to the extent
required by law.
SECTION 8.5 Repayment to Company. Subject to Sections 7.7, 8.1, 8.2
and 8.3, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers' Certificate any excess money held by
them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them under this Indenture that
remains unclaimed for two years; provided that the Trustee or such Paying
Agent before being required to make any payment to the Company shall cause to
be published at the expense of the Company twice in an Authorized Newspaper in
The City of New York or with respect to any Security the interest on which is
based on the offered quotations in the interbank Eurodollar market for dollar
deposits in an Authorized Newspaper in London or mail to each Holder entitled
to such money at such Holder's address (as set forth in the Security Register)
notice that such money remains unclaimed and that after a date specified
therein (which shall be at least 30 days from the date of such publication or
mailing) any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Holders entitled to such money
must look to the Company for payment as general creditors unless an applicable
law designates another Person, and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
SECTION 8.6 Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
8.1, 8.2 or 8.3, as the case may be, by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.1, 8.2 or 8.3 and the Trustee or Paying Agent shall promptly pay to
the Company upon written request any money or U.S. Government Obligations
deposited with it pursuant thereto; provided that if the Company has made any
payment of interest on or principal of any Securities of such series because
of the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities of any series without
notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act as
then in effect;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee; or
(5) to establish the form or forms or terms of the Securities of
any series or of any coupons appertaining to such Securities pursuant to
Section 2.3;
(6) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose; and
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
In no event shall a supplemental indenture executed under this
Section 9.1 provide that Unregistered Securities may be issued in exchange
for Registered Securities, including Registered Securities that were
previously issued in exchange for Unregistered Securities.
SECTION 9.2 With Consent of Holders. The Company and the Trustee
may amend this Indenture and the Securities of any series for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or modifying in any manner the rights of
Holders under this Indenture of such Securities, but only with the written
consent of the Holders of a majority in principal amount of the outstanding
Securities of each series affected by such supplemental indenture voting
separately; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each outstanding Security of each
series affected thereby,
(i) extend the stated maturity of the principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security, or reduce the principal amount thereof or the rate of interest
thereon (including any amount in respect of original issue discount), or
any premium payable with respect thereto, or adversely affect the rights
of such Holder under any mandatory redemption or repurchase provision or
any right of redemption or repurchase at the option of the Company or
such Holder, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 6.2 or the amount thereof
provable in bankruptcy, or change any place of payment where, or the
currency in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the due date therefor, or change the manner
of determining any of the foregoing established pursuant to Section 2.3
for the Securities of any series;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required
for any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture;
(iii) waive a Default in the payment of principal of or interest on any
Security of such Holder; or
(iv) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 4.2; or
(v) modify any of the provisions of this Section 9.2, 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.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the coupons
appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of
the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture
or waiver.
In no event shall a supplemental indenture executed under this
Section 9.2 provide that Unregistered Securities may be issued in exchange
for Registered Securities, including Registered Securities that were
previously issued in exchange for Unregistered Securities.
SECTION 9.3 Revocation and Effect of Consent. Until an amendment,
supplemental indenture or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
Security of the consenting Holder, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to its Security or portion of its Security. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of
written consents from the requisite Holders of outstanding Securities
affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at
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 Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (v) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (i) through (v) of Section 9.2, the amendment,
supplemental indenture or waiver shall bind each such Holder who has consented
to it and every subsequent Holder of a Security that evidences the same
indebtedness as the Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may
require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on
any Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to customary exceptions.
Subject to the preceding sentence, the Trustee shall sign such amendment,
supplement or waiver if the same does not adversely affect the rights of the
Trustee. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person when received or
(b) if mailed by first class mail 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission
is confirmed, in each case addressed as follows:
if to the Company:
Illinois Central Railroad Company
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
Attention: Chief Financial Officer
Telephone No.: (312) 755-7500
Telecopy No.: (312) 755-7839
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Samuel F. Pryor, III
Telephone No.: (212) 450-4000
Telecopier No.: (212) 450-4800
if to the Trustee:
The Chase Manhattan Bank, N.A.
4 Chase MetroTech Center, 3rd Floor
Brooklyn, New York 11245
Attention: Global Trust Services
Telephone No.: (718) 242-7291
Telecopier No.: (718) 242-3529
with a copy to:
Seward & Kissel
One Battery Park Plaza
New York, New York 10004
Attention: Kalyan Das
Telephone No.: (212) 574-1391
Telecopier No.: (212) 480-8421
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least twice in an Authorized
Newspaper in London and in any other place of payment for such Unregistered
Securities, and by mailing to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and to
Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Securities Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any
such communication or notice to a Holder shall also be mailed to the Trustee
and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders. Except as otherwise provided in this Indenture, if a notice or
communication is mailed in the manner provided in this Section 10.2, it is
duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.2 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:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
SECTION 10.3 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 10.4 Evidence of Ownership. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the Holder of
any Unregistered Security and the Holder of any coupon as the absolute
owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of
receiving payment thereof or on account thereof and for all other purposes,
and neither the Company, the Trustee, nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary. The fact of the
holding by any Holder of an Unregistered Security, and the identifying
number of such Security and the date of his holding the same, may be proved
by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate shall be deemed
by the Trustee to be satisfactory. Each such certificate shall be dated
and shall state that on the date thereof a Security bearing a specified
identifying number was deposited with or exhibited to such trust company,
bank, banker or recognized securities dealer by the person named in such
certificate. Any such certificate may be issued in respect of one or more
Unregistered Securities specified therein. The holding by the person named
in any such certificate of any Unregistered Securities specified therein
shall be presumed to continue for a period of one year from the date of
such certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security
specified in such certificate shall have ceased to be outstanding. Subject
to Article 7, the fact and date of the execution of any such instrument and
the amount and numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 10.5 Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.6 Payment Date Other Than a Business Day. If any date
for payment of principal or interest on any Security shall not be a
Business Day at any place of payment for such Security, then payment of
principal of or interest on such Security, as the case may be, need not be
made on such date, but may be made on the next succeeding Business Day at
any place of payment with the same force and effect as if made on such date
and no interest shall accrue in respect of such payment for the period from
and after such date.
SECTION 10.7 Governing Law. The laws of the State of New York
shall govern this Indenture and the Securities.
SECTION 10.8 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such
indenture or agreement may not be used to interpret this Indenture.
SECTION 10.9 Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 10.10 Duplicate Originals. 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.
SECTION 10.11 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.12 Table of Contents, Headings, Etc. The Table of
Contents 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 and provisions
hereof.
SECTION 10.13 Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security or any coupons appertaining thereto, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such or against
any past, present or future stockholder, officer, director or employee, as
such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such personal liability being expressly waived
and released by the acceptance of the Securities and the coupons appertaining
thereto by the holders thereof and as part of the consideration for the issue
of the Securities and the coupons appertaining thereto.
SECTION 10.14 Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a)
if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of or interest on the
Securities of any series (the "Required Currency") into a currency in which
a judgment will be rendered (the "Judgment Currency"), the rate of exchange
used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a Business Day, then, to the
extent permitted by applicable law, the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the
Judgment Currency on the Business Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in respect of
such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due under this
Indenture.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
ILLINOIS CENTRAL RAILROAD COMPANY
Attest: as the Company
________________
By:
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.
Attest: as Trustee
________________
By:
Name:
Title:
EXHIBIT 4.2
============================================================================
ILLINOIS CENTRAL RAILROAD COMPANY
as the Company
and
The Chase Manhattan Bank, N.A.
as Trustee
___________________________________
Indenture
Dated as of May , 1996
___________________________________
============================================================================
TABLE OF CONTENTS(*)
(*) Note: The Table of Contents shall not for any purposes be deemed
to be a part of the Indenture.
Page
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions........................................ 1
SECTION 1.2 Other Definitions.................................. 5
SECTION 1.3 Incorporation by Reference of and Control by
Trust Indenture Act.............................. 5
SECTION 1.4 Rules of Construction.............................. 6
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating.................................... 6
SECTION 2.2 Execution and Authentication....................... 7
SECTION 2.3 Amount Unlimited; Issuable in Series............... 8
SECTION 2.4 Denominations and Interest Payments................ 11
SECTION 2.5 Registrar and Paying Agent......................... 11
SECTION 2.6 Paying Agent to Hold Money in Trust................ 11
SECTION 2.7 Transfer and Exchange.............................. 12
SECTION 2.8 Replacement Securities............................. 14
SECTION 2.9 Outstanding Securities............................. 14
SECTION 2.10 Temporary Securities............................... 15
SECTION 2.11 Cancellation....................................... 15
SECTION 2.12 CUSIP Numbers...................................... 15
SECTION 2.13 Defaulted Interest................................. 16
SECTION 2.14 Persons Deemed Owners.............................. 16
SECTION 2.15 Designation........................................ 16
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article........................... 16
SECTION 3.2 Notice of Redemption; Partial Redemptions.......... 16
SECTION 3.3 Payment of Securities Called for Redemption........ 18
SECTION 3.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption..................... 18
SECTION 3.5 Mandatory and Optional Sinking Funds............... 19
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities.............................. 20
SECTION 4.2 Maintenance of Office or Agency.................... 21
SECTION 4.3 Corporate Existence................................ 22
SECTION 4.4 Payment of Taxes and Other Claims.................. 22
SECTION 4.5 Limitation on Liens................................ 22
SECTION 4.6 Certificate to Trustee............................. 23
SECTION 4.7 Reports by the Company............................. 24
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc........................ 24
SECTION 5.2 Successor Substituted.............................. 25
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default.................................. 25
SECTION 6.2 Acceleration....................................... 26
SECTION 6.3 Other Remedies..................................... 27
SECTION 6.4 Waiver of Past Defaults............................ 27
SECTION 6.5 Control by Majority................................ 27
SECTION 6.6 Limitation on Suits................................ 28
SECTION 6.7 Rights of Holders to Receive Payment............... 28
SECTION 6.8 Collection Suit by Trustee......................... 28
SECTION 6.9 Trustee May File Proofs of Claim................... 29
SECTION 6.10 Application of Proceeds............................ 29
SECTION 6.11 Restoration of Rights and Remedies................. 30
SECTION 6.12 Undertaking for Costs.............................. 30
SECTION 6.13 Rights and Remedies Cumulative..................... 30
SECTION 6.14 Delay or Omission Not Waiver....................... 30
ARTICLE 7
TRUSTEE
SECTION 7.1 General............................................ 30
SECTION 7.2 Certain Rights of Trustee.......................... 30
SECTION 7.3 Individual Rights of Trustee....................... 32
SECTION 7.4 Trustee's Disclaimer............................... 32
SECTION 7.5 Notice of Default.................................. 32
SECTION 7.6 Reports by Trustee to Holders...................... 32
SECTION 7.7 Compensation and Indemnity......................... 32
SECTION 7.8 Replacement of Trustee............................. 33
SECTION 7.9 Successor Trustee by Merger, Etc................... 34
SECTION 7.10 Eligibility........................................ 34
SECTION 7.11 Money Held in Trust................................ 34
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment.............. 34
SECTION 8.2 Defeasance......................................... 35
SECTION 8.3 Covenant Defeasance................................ 36
SECTION 8.4 Application of Trust Money......................... 36
SECTION 8.5 Repayment to Company............................... 36
SECTION 8.6 Reinstatement...................................... 37
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders......................... 37
SECTION 9.2 With Consent of Holders............................ 38
SECTION 9.3 Revocation and Effect of Consent................... 39
SECTION 9.4 Notation on or Exchange of Securities.............. 39
SECTION 9.5 Trustee to Sign Amendments, Etc.................... 39
SECTION 9.6 Conformity with Trust Indenture Act................ 40
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Notices............................................ 40
SECTION 10.2 Certificate and Opinion as to Conditions Precedent. 41
SECTION 10.3 Statements Required in Certificate or Opinion...... 41
SECTION 10.4 Evidence of Ownership.............................. 41
SECTION 10.5 Rules by Trustee, Paying Agent or Registrar........ 42
SECTION 10.6 Payment Date Other Than a Business Day............. 42
SECTION 10.7 Governing Law...................................... 42
SECTION 10.8 No Adverse Interpretation of Other Agreements...... 42
SECTION 10.9 Successors......................................... 42
SECTION 10.10 Duplicate Originals................................ 42
SECTION 10.11 Separability....................................... 42
SECTION 10.12 Table of Contents, Headings, Etc................... 43
SECTION 10.13 Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability...... 43
SECTION 10.14 Judgment Currency.................................. 43
ARTICLE 11
SUBORDINATION OF SECURITIES
SECTION 11.1 Subordination...................................... 49
SECTION 11.2 Rights of Holders of Senior Indebtedness........... 49
SECTION 11.3 Payments and Distributions......................... 50
SECTION 11.4 Payments by the Company............................ 52
SECTION 11.5 Appointment of the Trustee by Securityholders...... 52
SECTION 11.6 Notice to Trustee.................................. 52
SECTION 11.7 Rights of Trustee.................................. 52
SECTION 11.8 Paying Agent....................................... 53
SIGNATURES
INDENTURE, dated as of May , 1996, between Illinois Central
Railroad Company, a Delaware corporation, as the Company, and The Chase
Manhattan Bank, N.A., a national banking association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time
to time of its debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities or of any and all series thereof
and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 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. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting stock, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition)) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York or London, as applicable. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified by
the secretary or an assistant secretary to have been duly adopted and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means, with respect to any Security, any day,
other than a Saturday or Sunday, that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or regulation to
close in the place of payment of such Security.
"Commission" means the U.S. Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date of this
Indenture, located at 4 Chase MetroTech Center, 3rd Floor, Brooklyn, NY 11245,
Attention: Global Trust Services.
"Debt" means notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, The Depository Trust Company or any other Person designated as
Depositary pursuant to Section 2.3 with respect to such securities, until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or
include each Person who is then a Depositary hereunder and, if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"GAAP" means generally accepted accounting principles in the
United States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established pursuant to Sections 2.1 and 2.3.
"Officer" means, with respect to the Company, the chairman of
the board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the chairman of the board of directors, the president or
chief executive officer or a vice president and (ii) by the chief financial
officer, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, complying with Section 10.3 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.3.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee and complying with Section 10.4. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the statements
provided in Section 10.3, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security or (b)
the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.2.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on, the
Security.
"Registered Global Security" means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such Securities in accordance with Section 2.2, and bearing the legend
prescribed in Section 2.2.
"Registered Security" means any Security registered on the
Security Register.
"Responsible Officer" means any officer of the Trustee within
the Corporate Trust Office of the Trustee including any Managing Director,
Vice President, Assistant Vice President, Secretary, Assistant Secretary or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer of the Trustee to whom such matter
is referred because of such officer's knowledge and familiarity with the
particular subject.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall
include any coupon appertaining thereto.
"Securities Act" means the U.S. Securities Act of 1933, as
amended.
"Senior Indebtedness" means all Debt of the Company except the
Securities and except Debt subordinated to or subordinated on a parity with
the Securities.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of
the outstanding Voting Stock is owned, directly or indirectly, by such Person.
"Trust Indenture Act" means the U.S. Trust Indenture Act of
1939, as amended, as in effect on the date hereof, except as provided in
Sections 9.1 and 9.6.
"Trustee" means the party named as such in the first paragraph
of this Indenture, not in its individual capacity but solely as Trustee, until
a successor replaces it in accordance with the provisions of Article 7 and
thereafter means such successor, not in its individual capacity but solely as
Trustee.
"United States Bankruptcy Code" means the Bankruptcy Reform Act
of 1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which obligations (in the case of clause (i) or clause (ii)) are
not callable or redeemable at the option of the issuer thereof, and shall
also include (iii) a depository receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
"Yield to Maturity" means with respect to any Security, the
yield to maturity on such Security calculated at the time of issuance thereof
or, if applicable, at the most recent redetermination of interest on such
Security, and calculated in accordance with the constant interest method or
such other method as is specified in the terms of such Security established
pursuant to Section 2.3.
SECTION 1.2 Other Definitions. Each of the following terms is
defined in the Section set forth opposite such term:
Term Section
---- -------
Authenticating Agent 2.2
Bankruptcy Law 6.1
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.14
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
record date 2.4
Registrar 2.5
Required Currency 10.14
Security Register 2.5
sinking fund payment date 3.5
UCC 8.2
SECTION 1.3 Incorporation by Reference of and Control by Trust
Indenture Act. Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part
of this Indenture. 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, such imposed duties shall control. The following terms used in
this Indenture that are defined by the Trust Indenture Act have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust Indenture
Act, defined by reference in the Trust Indenture Act to another statute or
defined by a rule of the Commission and not otherwise defined herein have the
meanings assigned to them therein. For purposes of Trust Indenture Act
Section 311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery
of the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 1.4 Rules of Construction. Unless the context
otherwise requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, words in the
plural include the singular and "or" is not exclusive;
(iii) "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;
(iv) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated;
(v) use of masculine, feminine or neuter pronouns should not
be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns; and
(vi) provisions apply to successive actions, events and
transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each series and
the certificate of authentication to appear thereon, if any, shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to Board Resolution or one or more
indentures supplemental hereto, in each case with such letters, numbers or
other marks of identification, insertions, omissions, substitutions, legends,
endorsements and other variations as are authorized or permitted by the
provisions of this Indenture, or may be required to comply with any law, rule
or regulation or any rule of any securities exchange or to conform to usage,
all as may consistently herewith be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless
otherwise so determined, Unregistered Securities shall have coupons attached.
Unless otherwise established pursuant to Section 2.3 for the Securities of any
series, each Registered Security shall be dated the date of its authentication
and each Unregistered Security shall be dated the date of the original issue
of such Security or any predecessor Security. The definitive Securities shall
be printed, lithographed, engraved, or produced by any combination of these
methods or in any other manner on steel engraved borders or otherwise, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof. Unless otherwise established pursuant to this Section 2.3
for the Securities of any series, the certificate of authentication to appear
on all Securities shall be substantially as follows:
CERTIFICATE OF AUTHENTICATION
This Security is one of the Securities issued pursuant to the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK, N.A.
as Trustee
By________________________________
Authorized Officer
SECTION 2.2 Execution and Authentication. Two Officers shall
execute the Securities (other than coupons) for the Company by facsimile or
manual signature in the name and on behalf of the Company. The seal of the
Company, if any, shall be reproduced on the Securities. If an Officer whose
signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
The Trustee may appoint an authenticating agent acceptable to
the Company (an "Authenticating Agent") to authenticate Securities (other than
any coupons). The Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by any Authenticating Agent.
Unless otherwise established pursuant to Section 2.3 for the
Securities of any series, no Security (other than any coupons) shall be valid
until the Trustee or an Authenticating Agent manually signs the certificate of
authentication on the Security. Such signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
(having attached thereto appropriate coupons, if any) executed by the Company
to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company. In authenticating the Securities of any series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities of such series were
established;
(2) an Officers' Certificate setting forth the form or forms
and terms of the Securities and stating that the form or forms and
terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture;
(3) an Opinion of Counsel substantially to the effect that
the form or forms and terms of the Securities of such series have
been, or will be when established in accordance with such
procedures as shall be referred to therein, established in
compliance with this Indenture and that such Securities have been
duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and duly
paid for by the purchasers thereof, will be valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to creditors' rights
generally, general principles of equity (whether considered in a
proceeding in equity or at law) or an implied covenant of good
faith and fair dealing, and such other matters as shall be
specified therein; and
(4) In the event that the forms or terms of such Securities
have been established in or pursuant to a supplemental indenture, an
Opinion of Counsel substantially to the effect that the execution and
delivery of such supplemental indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, moratorium and other similar laws
relating to creditors' rights generally, general principles of equity
(whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing, and such other
matters as shall be specified therein.
Unless the terms established pursuant to Section 2.3 for the
Securities of a series or a portion thereof provide that any such Securities
are to be issued in any form other than as Registered Global Securities, the
Company shall execute and the Trustee shall authenticate and deliver one or
more Registered Global Securities that (i) shall state the aggregate principal
amount of all of the Securities of such series issued in such form and not yet
cancelled, (ii) shall be registered in the name of the Depositary therefor or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or its custodian or pursuant to such Depositary's instructions
and (iv) shall bear a legend substantially to the following effect: "UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY."
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to Board Resolution or one or more indentures
supplemental hereto, prior to the initial issuance of Securities of any
series, subject to the last sentence of this Section 2.3,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities
of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial
issuance of the Securities of that series (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities
of such series and tenor pursuant to Section 2.7, 2.8, 2.10, 3.2 or
9.4);
(3) any date or dates on which the principal of the Securities
of the series is payable (which date or dates may be fixed or
extendible);
(4) any rate or rates (which may be fixed or variable) per
annum at which the Securities of the series shall bear interest, if
any, any date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or any method by which any
such rate or rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, any place or
places where the principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may
be surrendered for exchange, any notices or demands to or upon the
Company in respect of the Securities of the series and this Indenture
may be served and any notice to Holders may be published, and any
time when such payments are to be made at any place of payment;
(6) any right of the Company to redeem Securities of the
series, in whole or in part, at its option and any period or periods
within which, any price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) any obligation of the Company to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder
thereof and any price or prices at which, any period or periods
within which, and any terms and conditions upon which, Securities of
the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(8) if other than the denominations specified in Section
2.4, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of the series shall
be payable or, if the amount of any payments of principal of and/or
interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in
which the Securities of the series are denominated, the manner in
which such amounts shall be determined;
(11) if other than the currency of the United States of America,
the currency or currencies, including composite currencies, in which
payment of the principal of (and premium, if any) and interest on the
Securities of the series shall be payable, and the manner in which
any such currencies shall be valued against other currencies in which
any other Securities shall be payable;
(12) if other than as Registered Global Securities, whether the
Securities of the series or any portion thereof will be issuable as
Registered Securities or Unregistered Securities (with or without
coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities
or the payment of interest thereon and, if other than as provided
herein, any terms upon which Unregistered Securities of any series
may be issued in exchange for Registered Securities of such series
and tenor provided, however, that Unregistered Securities shall not
be issued in exchange for Registered Securities, including Registered
Securities that were issued in exchange for Unregistered Securities;
(13) any obligation of the Company to pay additional amounts on
the Securities of the series in respect of any tax, assessment or
governmental charge withheld or deducted and any right of the Company
to redeem such Securities rather than pay such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) if other than the Person acting as Trustee, any Agent
authenticating the Securities of the series;
(16) any provisions for the defeasance of any Securities of the
series in addition to, in substitution for or in modification of the
provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of any
Depositary for such Registered Global Security or Securities other
than The Depository Trust Company and any circumstances other than
those set forth in Section 2.7 in which any Person may have the right
to obtain Registered Securities in exchange therefor;
(18) any provisions for Events of Default applicable to any
Securities of the series in addition to, in substitution for or in
modification of the provisions of Section 6.1;
(19) any provisions for covenants applicable to any Securities
of the series in addition to, in substitution for or in modification
of the provisions of Article 4;
(20) any provision for subordination applicable to any
Securities of the series in addition to, in substitution for or in
modification of the provisions of Article 11; and
(21) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto, shall be substantially identical, except as to principal
amount and, in the case of Registered Securities, as to date of authentication
and payee, and except as may otherwise be provided by or pursuant to the Board
Resolution or indenture supplemental hereto referred to above.
Notwithstanding the proceeding sentence, all Securities of any one series need
not be issued at the same time and may be issued from time to time, if so
provided by or pursuant to such Board Resolution or such indenture
supplemental hereto, and any forms and any terms of such Securities may be
determined from time to time prior to the issuance thereof by procedures
established by or pursuant to such Board Resolution or supplemental indenture.
SECTION 2.4 Denominations and Interest Payments. The
Securities shall be issuable as Registered Securities or Unregistered
Securities in denominations established pursuant to Section 2.3 or, if not so
established, in denominations of $1,000 and any integral multiple thereof for
Registered Securities and in denominations of $10,000 and $100,000 for
Unregistered Securities.
The Securities of each series shall bear interest, if any, from
the date, and such interest and shall be payable on the dates, established
pursuant to Section 2.3 for the Securities of such series.
The person in whose name any Registered Security is registered
at the close of business on any record date with respect to any interest
payment date for such Security shall be entitled to receive the interest, if
any, payable on such interest payment date notwithstanding any transfer or
exchange of such Registered Security subsequent to the record date and prior
to such interest payment date, except to any extent the Company shall default
in the payment of such interest, in which case the provisions of Section 2.13
shall apply. The term "record date" as used with respect to any interest
payment date (except a date for payment of defaulted interest) for any
Registered Security shall mean the date specified as such in the terms of such
Registered Security established pursuant to Section 2.3, or, if no such date
is so established, the fifteenth day next preceding such interest payment
date, whether or not such record date is a Business Day.
Whenever it is necessary to compute an amount of interest in
respect of any Security for a period of less than a full year, such interest
shall be calculated on the basis of a 360-day year consisting of twelve months
of 30 days each and, in the case of an incomplete month, the actual number of
days elapsed, except as otherwise established pursuant to Section 2.3 for any
Security.
SECTION 2.5 Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent").
The Registrar shall keep a register of the Registered Securities of each
series and of their registration, transfer and exchange (the "Security
Register"). The Company may appoint one or more additional or substitute
Paying Agents or Registrars with respect to the Securities of any series, or
remove any Agent, without notice to any Person (other than the Trustee). The
terms "Paying Agent" and "Registrar" includes all Persons appointed as such.
Whenever no other Person is acting as Registrar or Paying Agent
with respect to the Securities of any series, the Person then acting as
Trustee shall also act as such Registrar or Paying Agent. The Company or any
Affiliate of the Company may act as Paying Agent or Registrar. If, at any
time, the Person acting as the Trustee is not the Registrar with respect to
the Registered Securities of any series, such Registrar shall make available
to the Trustee ten days prior to each interest payment date for such
Securities and at such other times as the Trustee may reasonably request the
names and addresses of the Holders as they appear in the Security Register for
such Securities.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not later
than 10:00 a.m. in the place of payment on each due date of any principal or
interest on any Securities, or at such other time as shall be established
pursuant to Section 2.3 for any Securities with respect to such Securities,
the Company shall deposit with the Paying Agent money in immediately available
funds sufficient to pay such principal or interest. The Company shall require
each Paying Agent with respect to the Registered Securities of any series
other than the Person acting as the Trustee to agree in writing that such
Paying Agent shall hold in trust for the benefit of the Holders of such
Securities or the Trustee all money held by the Paying Agent for the payment
of principal of and interest on such Securities and shall promptly notify the
Trustee of any default by the Company in making any such payment. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a
Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon doing so, the Paying
Agent (as such) shall have no further liability for the money so paid over to
the Trustee. If the Company or any Affiliate of the Company acts as Paying
Agent, it will segregate and hold in a separate trust fund for the benefit of
the Holders thereof a sum of money sufficient to pay such principal or
interest so becoming due until such sum of money shall be paid to such Holders
or otherwise disposed of as provided in this Indenture, and will promptly
notify the Trustee in writing of its failure to act as required by this
Section 2.6.
SECTION 2.7 Transfer and Exchange. Unregistered Securities
(except for any temporary global Unregistered Securities) and coupons (except
for coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities of
such series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company maintained for such purpose and upon payment, if
the Company shall so require, of the sum hereinafter provided. If the
Securities of any series are issued in both registered and unregistered form,
except as otherwise established pursuant to Section 2.3 for the Securities of
such series, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company maintained for such purpose, with, in the case of Unregistered
Securities that were issued with coupons appertaining, all such unmatured
coupons and all such matured coupons in default, and upon payment, if the
Company shall so require, of the sum hereinafter provided. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Except as otherwise established pursuant
to Section 2.3 for the Securities of such series, no Unregistered Securities
may be issued in exchange for Registered Securities and no Registered
Securities, including Registered Securities received in exchange for
Unregistered Securities, may be issued in exchange for any Unregistered
Securities.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder or
his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge that may be imposed in
connection with any exchange or registration of transfer of Securities (other
than such transfer tax or similar charge imposed upon exchanges pursuant to
Section 2.10, 3.3 or 9.4). No service charge shall be made for any such
transaction.
Notwithstanding any other provision of this Section 2.7, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security of any series may not be
transferred except as a whole by the Depositary therefor to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or unable
to continue as Depositary for such Registered Global Securities or if at any
time the Depositary for such Registered Global Securities shall no longer be
eligible under applicable law, the Company shall appoint a successor
Depositary eligible under applicable law with respect to such Registered
Global Securities. If a successor Depositary eligible under applicable law
for such Registered Global Securities is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of the
Company's order for the authentication and delivery of definitive Registered
Securities of such series, will authenticate and deliver, Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no longer
be maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series and tenor in definitive registered form
without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of such Registered Global Securities, in
exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the
form of Registered Global Securities pursuant to the preceding two paragraphs,
the Company agrees to supply the Trustee with a reasonable supply of
certificated Registered Securities without the legend required by Section 2.2
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
During the continuance of an Event of Default and in such other
circumstances, if any, as may be established pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the
Company or the Trustee. The Trustee or such Agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any Agent
shall issue any Registered Security in exchange for an Unregistered Security
if such exchange would result in adverse Federal income tax consequences to
the Company under then applicable United States Federal income tax laws and
any Registered Security issued in exchange for an Unregistered Security will
be subject to the provisions of the United States Federal income tax laws and
regulations applicable to debt securities in effect at the time of such
exchange. The Trustee and any Agent shall be entitled to rely on an Officers'
Certificate or an Opinion of Counsel in determining such result and, in the
absence thereof, shall assume without inquiry that any such exchange would
cause such adverse tax consequences.
The Registrar shall not be required (i) to register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the transmission of a notice
of redemption of Securities of such series selected for redemption under
Section 3.2 and ending at the close of business on the day of such
transmission or (ii) to register the transfer of or exchange any Security
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 2.8 Replacement Securities. If a defaced or
mutilated Security of any series is surrendered to the Trustee or if a
Holder claims that its Security of any series has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security of such series and tenor and principal
amount, bearing a number not contemporaneously outstanding. If required by
the Trustee or the Company, an indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect
the Company, the Trustee and any Agent from any loss that any of them may
suffer if a Security is replaced. The Company may charge such Holder for
its expenses and the expenses of the Trustee (including without limitation
attorneys' fees and expenses) in replacing a Security. In case any such
mutilated, defaced, lost, destroyed or wrongfully taken Security has become
or is about to become due and payable, the Company in its discretion may
pay such Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities outstanding at
any time are all Securities that have been authenticated by the Trustee except
for those cancelled by it, those delivered to it for cancellation and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases
to be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide holder
in due course.
If the Paying Agent (other than the Company or an Affiliate of
the Company) holds, or if the Company or its Affiliate (if the Company or its
Affiliate shall act as the Paying Agent) sets aside and segregates in trust,
on the maturity date or any redemption date or date for repurchase of the
Securities, money sufficient to pay Securities payable or to be redeemed or
repurchased on that date, then on and after that date such Securities cease to
be outstanding and interest on them shall cease to accrue; provided, however,
that, if such Securities or portions thereof are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture, or provision
therefor satisfactory to such Trustee has been made.
A Security does not cease to be outstanding because the Company
or one of its Affiliates holds such Security, 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, Securities owned by the
Company or any Affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee knows to be so owned shall be so disregarded. The principal amount of
an Original Issue Discount Security that shall be deemed to be outstanding for
such purposes shall be the amount of principal thereof that would be due and
payable as of the date of such determination upon a declaration of
acceleration pursuant to Section 6.2. Any Securities so owned which have been
pledged in good faith by the Company, or by any Affiliate of the Company, as
security for loans or other obligations, otherwise than to another such
Affiliate of the Company, shall be deemed to be outstanding if the pledgee
establishes to the satisfaction of the Trustee that the pledgee is entitled
pursuant to its pledge agreement and is free to exercise in its discretion the
right to vote such securities, uncontrolled by the Company or by any such
Affiliate.
SECTION 2.10 Temporary Securities. Until definitive
Securities of any series are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities of such series.
Temporary Securities of any series shall be substantially in the form of
definitive Securities of such series but may have insertions,
substitutions, omissions and other variations determined to be appropriate
by the Officers executing the temporary Securities, as evidenced by their
execution of such temporary Securities. If temporary Securities of any
series are issued, the Company will cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of any series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series and
tenor upon surrender of such temporary Securities at the office or agency
of the Company designated for such purpose, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of
any series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of such series and tenor and authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series
and tenor.
SECTION 2.11 Cancellation. The Company at any time may
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold. Any Agent shall forward to the Trustee any Securities surrendered
to it for transfer, exchange or payment. The Trustee shall cancel and destroy
all Securities surrendered for transfer, exchange, payment or cancellation and
shall deliver certificates of destruction to the Company, all in accordance
with its customary practices. The Company may not issue new Securities to
replace Securities it has paid in full or delivered to the Trustee for
cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption, repurchase or exchange as a convenience to Holders;
provided that any such notice shall state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any such notice.
SECTION 2.13 Defaulted Interest. If the Company
defaults in a payment of interest on any Securities of any series, it shall
pay, or shall deposit with the Paying Agent money in immediately available
funds sufficient to pay, the defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest (as may be specified in the
terms established pursuant to Section 2.3 for the Securities of such series)
to the Persons who are Holders on a subsequent special record date, which
shall mean the 15th day next preceding the date fixed by the Company for the
payment of defaulted interest, whether or not such day is a Business Day. At
least 15 days before such special record date, the Company shall mail to each
Holder and to the Trustee a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.14 Persons Deemed Owners. Prior to due
presentment of a Security for registration of transfer and subject to Section
2.13, the Company, the Trustee and any Agent may deem and treat the Person in
whose name any Security shall be registered upon the register of Securities
kept by the Registrar as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of the
ownership or other writing thereon made by anyone other than the Company or
any Registrar) for the purpose of receiving payments or principal of or
interest on such Security and for all other purposes; and none of the Company,
the Trustee and any Agent shall be affected by any notice to the contrary.
None of the Company, the Trustee and any Agent shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Registered
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 2.15 Designation. The indebtedness evidenced by
the Securities is hereby irrevocably designated as "subordinated indebtedness"
or such other term denoting subordination for the purposes of any future
indebtedness of the Company that the Company does not make subordinate to any
senior indebtedness or such other term denoting seniority.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series, except as otherwise specified pursuant to Section 2.3
for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions. Notice
of redemption shall be given by the Company, or at the Company's request, by
the Trustee in the name and at the expense of the Company, to the Holders of
Registered Securities to be redeemed by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such Holders at their last addresses
as they shall appear upon the Security Register. Notice of redemption to the
Holders of Unregistered Securities to be redeemed who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act, shall be given by mailing notice of such redemption, by first
class mail, postage prepaid, at least 30 days and not more than 60 days prior
to the date fixed for redemption, to such Holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice given by the
Company, the Trustee shall make such information available to the Company for
such purpose). Notice of redemption to all other Holders of Unregistered
Securities to be redeemed as a whole or in part shall be published in an
Authorized Newspaper in The City of New York or, with respect to any Security
the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits, in an Authorized Newspaper in London,
and in any other place of payment established pursuant to Section 2.3 for such
Unregistered Security, in each case, once in each of three successive calendar
weeks, the first publication to be not less than 30 days nor more than 60 days
prior to the date fixed for redemption. Any notice which is mailed or
published in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed
for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and,
in the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, or such other terms of such Securities as shall be specified
in such notice, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that, unless the Company defaults in
making such redemption payment, on and after said date interest thereon or on
the portions thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and
shall state that on and after the date fixed for redemption, upon surrender of
such Security, a new Security or Securities of such series and tenor in
principal amount equal to the unredeemed portion thereof will be issued.
On or before 10:00 a.m. (or at such other time as shall be
established pursuant to Section 2.3) in the place of payment on the
redemption date specified in the notice of redemption given as provided in
this Section, or at such other time as shall be established pursuant to
Section 2.3 for any Securities with respect to such Securities, the Company
will deposit with the Trustee or with one or more Paying Agents (or, if the
Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.6) an amount of money sufficient to redeem
on the redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If all of the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 10 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first paragraph of this
Section 3.2 an Officers' Certificate stating that all such Securities are
to be redeemed. If less than all the outstanding Securities of a series
are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 (or such
shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating the aggregate principal amount of such Securities to be
redeemed. In case of a redemption at the election of the Company prior to
the expiration of any restriction on such redemption, the Company shall
deliver to the Trustee, prior to the giving of any notice of redemption to
Holders pursuant to this Section, an Officers' Certificate stating that
such redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after such date (unless the Company shall default in
the payment of such Securities at the redemption price, together with interest
accrued to such date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured coupons, if
any, appertaining thereto shall be void and, except as provided in Sections
7.11 and 8.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security, or at any rate for defaulted interest
specified in the form or terms of such Security established pursuant to
Section 2.1 or 2.3.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons maturing
after the date fixed for redemption, the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee, if there be furnished to
each of them such security or indemnity as they may require to save each of
them harmless, or the redemption price may be reduced by an amount equal to
the face amount of all such missing coupons.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized officer of
the Company and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the Company or
(b) an entity specifically identified in such written statement as an
Affiliate of the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such sixtieth day, to
deliver such Officers' Certificate and Securities specified in this paragraph,
if any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such series as provided
in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 or a lesser sum if the Company shall so request with
respect to the Securities of any series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 or less and the Company makes no such request then it shall be carried
over until a sum in excess of $50,000 is available. The Trustee shall select,
in the manner provided in Section 3.2, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by
the Company) inform the Company of the serial numbers of the Securities of
such series (or portions thereof) so selected. Securities shall be excluded
from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to
the Trustee at least 60 days prior to the sinking fund payment date as being
owned of record and beneficially by either (a) the Company or (b) an entity
specifically identified in such Officers' Certificate as an Affiliate of the
Company. The Trustee, in the name and at the expense of the Company (or the
Company, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 3.2 (and with the effect provided in Section 3.3)
for the redemption of Securities of such series in part at the option of the
Company. The amount of any sinking fund payments not so applied or allocated
to the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities
of such series at maturity.
On or before 10:00 a.m. in the place of payment on each sinking
fund payment date, the Company shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the date fixed
for redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund
during the continuance of a Default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when
any such Default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 6 and held
for the payment of all Securities of such Series. In case such Event of
Default shall have been waived as provided in Section 6.4 or the Default cured
on or before the sixtieth day preceding the sinking fund payment date in any
year, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities
with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of
Registered Securities so agree, payments of interest on, and any portion of
the principal of, such Holder's Registered Securities (other than interest
payable at maturity or on any redemption or repayment date or the final
payment of principal on a Security) shall be made by the Paying Agent directly
to the Holder of such Securities by Federal funds wire transfer or otherwise
if the Holder has delivered written instructions to the Paying Agent at least
15 days prior to such payment date requesting that such payment will be so
made and designating the bank account to which such payments shall be so made
and in the case of payments of principal has surrendered such Security to the
Trustee in exchange for a Security or Securities of the same series and tenor
aggregating the same principal amount as the unredeemed principal amount of
the Securities surrendered. The Trustee shall be entitled to rely on the last
instruction delivered by the Holder pursuant to this Section 4.1 unless a new
instruction is delivered 15 days prior to a payment date.
The Company shall pay interest on overdue principal, and
interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company hereby initially designates the office of BancBoston
Trust Company of New York, located in the Borough of Manhattan, The City of
New York, as such office or agency of the Company. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such
an agency is required to be maintained under the rules of any stock
exchange on which the Securities of any series are listed) where the
Unregistered Securities, if any, of each series and coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or coupon will be made upon presentation of such
Unregistered Security or coupon at an agency of the Company within the
United States nor will any payment be made by transfer to an account in, or
by mail to an address in, the United States unless, pursuant to applicable
United States laws and regulations then in effect, such payment can be made
without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("Dollars") at each
agency maintained by the Company outside the United States for payment on
such Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars shall be made at an
agency of the Company maintained in the Borough of Manhattan, The City of
New York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise established pursuant to Section 2.3 with
respect to the Securities of any series, the time of each payment by the
Company to the Trustee or any Agent under this Indenture shall be at 10:00
A.M. in the place of payment thereof.
SECTION 4.3 Corporate Existence. Subject to Article 5, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and its material rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such material right or franchise if the
preservation thereof is no longer desirable in the conduct of the business of
the Company or the loss thereof is not materially adverse to the Holders of
the Securities.
SECTION 4.4 Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before any penalty
accrues thereon, all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment or charge whose amount, applicability or
validity is being contested in good faith by appropriate proceedings.
SECTION 4.5 Certificate to Trustee. Within 120 days after the
close of each fiscal year of the Company ending after the date hereof, the
Company will file with the Trustee a certificate signed by the Chairman of the
Board of Directors, the Chief Executive Officer, the President or any Vice
President and by the Chief Financial Officer, the Treasurer, the Controller or
any Assistant Treasurer or Assistant Controller or the Secretary or any
Assistant Secretary of the Company (provided, that one such signatories shall
be the Company's principal executive officer, principal financial officer or
principal accounting officer), as to such Officers' knowledge of the Company's
compliance with all conditions and covenants under this Indenture (without
regard to any period of grace or requirement of notice provided hereunder) and
in the event any Default of the Company exists, such Officers shall specify
the nature of such Default.
SECTION 4.6 Reports by the Company. The Company covenants to
(a) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act (or copies of such portions thereof as may be prescribed by the
Commission by rules and regulations); or, if the Company is not required to
file with the Commission information, documents or reports pursuant to either
Section 13 or Section 15(d) of the Exchange Act, then the Company will file
with the Trustee and will file with the Commission, in accordance with rules
and regulations prescribed by the Commission, such of the supplementary and
periodic information, documents and reports required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations; (b)
file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required by such rules and regulations, including, in the case of annual
reports, if required by such rules and regulations, certificates or opinions
of independent public accountants, conforming to the requirements of Sections
10.2 and 10.3, as to compliance with conditions or covenants, compliance with
which is subject to verification by accountants; (c) mail, or cause the
Trustee to mail, to the Holders of the Securities, as the names and addresses
of such Holders appear on the register for Securities, such information,
documents and reports required to be filed with the Trustee pursuant to the
provisions of paragraphs (a) and (b) of this Section 3.3 as may be required by
rules and regulations prescribed by the Commission; and (d) remain subject to
the informational filing requirements of the Commission pursuant to the
Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company shall not
consolidate or merge with any other Person or sell, convey, assign, transfer,
lease or otherwise dispose of all or substantially all its properties and
assets as an entirety in one transaction or a series of transactions to any
Person, unless:
(1) either (a) the Company shall be the continuing Person or
(b) such Person shall be a corporation organized and validly existing
under the laws of the United States of America or any State thereof
or the District of Columbia and shall expressly assume by a
supplemental indenture all of the Company's obligations under the
Securities and under this Indenture;
(2) immediately before and after such transaction or each
element of such series, no Default or Event of Default or Event of
Default shall have occurred and be continuing; and
(3) giving effect to such transaction will not cause an event
of default under any mortgage, bond, debenture, note or other
instrument or obligation that the Company or any Subsidiary of the
Company is a party to or bound by.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture.
SECTION 5.2 Successor Substituted. Upon any consolidation
or merger, or any sale, conveyance, assignment, transfer, lease or other
disposition of all or substantially all of the properties and assets of the
Company in accordance with Section 5.1, the successor Person formed by such
consolidation or into or with which the Company is merged or to which such
sale, conveyance, assignment, transfer, lease or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and, except in the
case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default" shall
occur with respect to the Securities of any series if there shall occur:
(a) Any failure to pay any installment of interest on any
Securities of such series, when and as the same shall become payable
as therein expressed, and such failure shall continue for a period of
30 days (it being understood that if the entire amount of such
payment of interest is irrevocably deposited by the Company with the
Trustee, or with another Paying Agent duly appointed hereunder,
before the expiration of such period of 30 days, such Default shall
no longer be considered to be continuing under this Indenture); or
(b) Any failure to pay the principal of any Securities of
such series when and as the same shall become due and payable as
therein expressed, whether at the stated maturity thereof or
otherwise; or
(c) Any failure to perform or observe any other of the
covenants, conditions or agreements on the part of the Company to be
performed or observed pursuant to this Indenture or in the Securities
of such series, (other than a covenant, condition or agreement a
Default in whose performance or whose breach is elsewhere in this
Section 6.1 specifically dealt with) and such failure shall continue
for a period of 60 days after written notice specifying the failure
and that the same is a Default and requiring the Company to remedy
such failure shall have been given to the Company from the Trustee or
to the Company and to the Trustee from the Holders of not less than
25% of the principal amount of the Securities of such series then
outstanding; or
(d) Any default or event of default, as defined in any one
or more mortgages, indentures or instruments under which there may
be issued, or by which there may be secured or evidenced,
indebtedness of the Company or any Subsidiary, whether such
indebtedness now exists or shall hereafter be created, and the
holders of such indebtedness shall have declared an aggregate amount
in excess of $20,000,000 thereof to be due and payable prior to the
date on which it would otherwise have become due and payable and such
declaration shall not have been cured, waived, rescinded or annulled
in accordance with the provisions of such mortgage, indenture or
instruments or such indebtedness shall not have been discharged
within a period of 30 days; or
(e) The Company or any Material Subsidiary shall file a
petition commencing a voluntary case under any provision of Title 11,
United States Code or any similar Federal or state law for the relief
of debtors (the "Bankruptcy Law"); or the Company or any Material
Subsidiary shall file a petition or answer or consent seeking
reorganization, arrangement, adjustment, or composition under any
Bankruptcy Law, or shall consent to the filing of any such petition,
answer, or consent; or the Company or any Material Subsidiary shall
appoint, or consent to the appointment of, a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other similar official
in bankruptcy or insolvency of the Company or any Material Subsidiary
or of any substantial part of its property or shall make an
assignment for the benefit of creditors; or
(f) Any order for relief against the Company or any Material
Subsidiary shall have been entered by a court having jurisdiction in
the premises under any provision of Bankruptcy Law and such order
shall have continued undischarged or unstayed for a period of 60
days; or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a
petition seeking reorganization, arrangement, adjustment, or
composition of the Company or any Material Subsidiary under any
Bankruptcy Law, and such decree or order shall have continued
undischarged or unstayed for a period of 60 days; or a decree or
order of court having jurisdiction in the premises for the
appointment of a custodian, receiver, similar official in bankruptcy
or insolvency of the Company or any Material Subsidiary or of any
substantial part of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and such decree
or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(g) Any other Event of Default established pursuant to Section
2.3 for the Securities of such series.
SECTION 6.2 Acceleration. (a) If an Event of Default
described in clauses (a), (b), (c), (d) or (g) of Section 6.1 with respect to
the Securities of any series then outstanding occurs and is continuing, then,
and in each and every such case, except for any Securities the principal of
which shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities
of any such affected series then outstanding hereunder (each such series
treated as a separate class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.3) of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
(b) If an Event of Default described in clause (e) or (f) of
Section 6.1 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
Section 2.3) of all the Securities then outstanding of such affected series,
except for any Securities the principal of which shall have already become due
and payable, and interest accrued thereon, if any, shall be and become
immediately due and payable, without any notice or other action by any Holder
or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities
are Original Issue Discount Securities, such portion of the principal as
may be specified in the terms thereof established pursuant to Section 2.3)
of the Securities of any series (or of all the Securities, as the case may
be) 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 have paid or shall have
deposited with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of each such series (or of all the
Securities, as the case may be) and the principal of any and all Securities
of each such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at
the rate specified therefor in such Securities or, if not so specified, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each
such series to the date of such payment or deposit) and such amount as
shall be sufficient to cover all amounts owing the Trustee under Section
7.7, and if any and all Events of Default under the Indenture, other than
the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as
provided herein, then and in every such case the Holders of a majority in
aggregate principal amount of all the then outstanding Securities of each
such series that have been accelerated (each such series voting as a
separate class), by written notice to the Company and to the Trustee, may
waive all defaults with respect to each such series (or with respect to all
the Securities, as the case may be) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.3 Other Remedies. If an Event of Default with
respect to the Securities of any series occurs and is continuing, the Trustee
may pursue, in its own name or as trustee of an express trust, any available
remedy by proceeding at law or in equity to collect the payment of principal
of and interest on the Securities of such series or to enforce the performance
of any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections 6.2,
6.7 and 9.2, the Holders of at least a majority in principal amount (or, if
the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
Section 2.3) of the outstanding Securities of each series affected (each such
series voting as a separate class), by notice to the Trustee, may waive an
existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of principal of
or interest on any Security as specified in clause (a) or (b) of Section 6.1
or in respect of a covenant or provision of this Indenture which cannot be
modified or amended without the consent of the Holder of each outstanding
Security affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default with respect to the Securities of such series arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1
and 7.2(v), the Holders of at least a majority in aggregate principal
amount (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof
established pursuant to Section 2.3) of the outstanding Securities of each
series affected (each such series voting as a separate class) may direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series by this Indenture;
provided, that the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that may involve the Trustee in
personal liability or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders not joining in the giving of
such direction; and provided further, that the Trustee may take any other
action it deems proper that is not inconsistent with any directions
received from Holders of Securities pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any Security of
any series may institute any proceeding, judicial or otherwise, with respect
to this Indenture or the Securities of such series, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of such
series have not given the Trustee a direction that is inconsistent
with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default
with respect to the Securities of any series in payment of principal or
interest specified in clause (a) or (b) of Section 6.1 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount (or such portion
thereof as specified in the terms established pursuant to Section 2.3 of
Original Issue Discount Securities) of principal of, and accrued interest
remaining unpaid on, together with interest on overdue principal of, and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each case at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities or, if not so specified, at the same
rate as the rate of interest or Yield to Maturity (in such case) specified for
such Securities, and such further amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.7) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it under Section 7.7. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of the Securities
of any series shall, subject to Article 11, be applied in the following order
at the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon presentation of the
several Securities or any coupons appertaining to such Securities in respect
of which moneys have been collected and stamping (or otherwise noting) thereon
the payment, or issuing Securities of such series and tenor in reduced
principal amounts in exchange for the presented Securities of such series and
tenor if only partially paid, or upon surrender thereof if fully paid,
provided, that when interest alone is to be paid on a Registered Security, the
Trustee at its election may waive presentation of the Securities:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect
of which moneys have been collected;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest, at the rate specified therefor in such
Securities or, if not so specified, at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
principal and interest, with interest upon the overdue principal, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest, at the rate specified therefor
in such Securities or, if not so specified, at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield
to Maturity, or of interest or Yield to Maturity over principal, or
of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security
of such series, ratably to the aggregate of such principal and
accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then, and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Company, Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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, in
either case in respect to the Securities of any series, a court may require
any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant (other
than the Trustee) in the suit having due regard to the merits and good faith
of the claims or defenses made by the party litigant. This Section 6.12 does
not apply to a suit by a Holder pursuant to Section 6.7 or a suit by any
Holder or group of Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act and as set forth
herein. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers'
Certificate, Opinion of Counsel (or both), statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 10.3. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2,
whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance
with Section 6.5 relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture;
(vii) 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; and
(viii) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, Officers' Certificate,
Opinion of Counsel, Board Resolution, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series affected then outstanding; provided that, if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require indemnity satisfactory to it
against such expenses or liabilities as a condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311.
SECTION 7.4 Trustee's Disclaimer. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (i) makes any representation
as to the validity or adequacy of this Indenture or the Securities and (ii)
shall be accountable for the Company's use or application of the proceeds from
the Securities.
SECTION 7.5 Notice of Default. If any Default with respect to
the Securities of any series occurs and is continuing the Trustee shall give
to each Holder of Securities of such series notice of such Default known to it
within 60 days after it occurs (i) if any Unregistered Securities of such
series are then outstanding, to the Holders thereof, by publication at least
twice in an Authorized Newspaper in London and in any other place of payment
for Unregistered Securities of such series and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless such Default shall have been cured
or waived before the mailing or publication of such notice; provided, however,
that, except in the case of a Default in the payment of the principal of or
interest on any Security, the Trustee shall be protected in withholding such
notice if Responsible Officer in good faith determines that the withholding of
such notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60 days
after each May 15, beginning with May 15, 1997, the Trustee shall mail to each
Holder as and to the extent provided in Trust Indenture Act Section 313(c) a
brief report dated as of such May 15, if required by Trust Indenture Act
Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company shall pay
to the Trustee such compensation as shall be agreed upon in writing from time
to time for its services. The compensation of the Trustee shall not be
limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee without negligence or bad faith in its part. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents,
counsel and other persons not regularly in its employ.
The Company shall indemnify each of the Trustee, any
predecessor Trustee and their officers, directors and employees, for, and hold
each of them harmless against, any loss or liability or expense incurred by
any of them without negligence or bad faith on the part of any of them arising
out of or in connection with the acceptance or administration of this
Indenture, the Securities or the trusts hereunder, or the issuance of any
Securities or of any series thereof and the performance of duties under this
Indenture and the Securities, including the costs and expenses of defending
against or investigating any claim or liability and of complying with any
process served upon any of them in connection with the exercise or performance
of any of the powers or duties of the Trustee under this Indenture and the
Securities.
The obligations of the Company under this Section 7.7 to
compensate the Trustee, to indemnify the Trustee, each predecessor Trustee and
their officers, directors and employees and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture or the rejection or termination of this Indenture under
bankruptcy law. Such additional indebtedness shall be a senior claim to that
of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of
particular Securities, and the Securities are hereby subordinated to such
senior claim.
SECTION 7.8 Replacement of Trustee. A resignation or removal
of the Trustee as Trustee with respect to the Securities of any series and an
appointment of a successor Trustee as Trustee with respect to the Securities
of any series shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities of
any series may remove the Trustee as Trustee with respect to the Securities of
such series by so notifying the Trustee in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company. The Company may
remove the Trustee as Trustee with respect to the Securities of any series if:
(i) the Trustee is no longer eligible under Section 7.10 of this Indenture;
(ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or
other public officer takes charge of the Trustee or its property; or (iv) the
Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect
to the Securities of any series, or if a vacancy exists in the office of
Trustee with respect to the Securities of any series for any reason, the
Company shall promptly appoint a successor Trustee with respect thereto.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the outstanding Securities of such series may
appoint a successor Trustee in respect of such Securities to replace the
successor Trustee appointed by the Company. If the successor Trustee with
respect to the Securities of any series does not deliver its written
acceptance required by the next succeeding paragraph of this Section 7.8
within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least 10% in principal amount of the
outstanding Securities of such series may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.7, (i) the retiring
Trustee shall promptly transfer all property held by it as Trustee in respect
of the Securities of such series to the successor Trustee, (ii) the
resignation or removal of the retiring Trustee in respect of the Securities of
such series shall become effective and (iii) the successor Trustee shall have
all the rights, powers and duties of the Trustee in respect of the Securities
of such series under this Indenture. A successor Trustee shall promptly mail
notice of its succession to each Holder of Securities of such series.
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 the preceding paragraph.
The Company shall promptly give notice of any resignation and
any removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee in respect of the Securities of such
series to all Holders of Securities of such series. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee and the retiring Trustee shall have no liability for the acts or
omissions of any successor Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national
banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor
Trustee with the same effect as if the successor Trustee had been named as the
Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall always
have a Trustee who satisfies the requirements of Trust Indenture Act Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not
be liable for interest on any money received by it except as the Trustee may
agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and
except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.1, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated
and delivered (other than destroyed, lost or wrongfully taken
Securities of such series that have been replaced or Securities of
such series that are paid pursuant to Section 4.1 or Securities of
such series for whose payment money or securities have theretofore
been held in trust and thereafter repaid to the Company, as provided
in Section 8.5) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year
or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or
a combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment,
to pay principal of and interest on the Securities of such series to
maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, (C) such deposit will not result in a breach
or violation of or constitute a default under this Indenture or any
other agreement or instrument to which the Company is a party or by
which it is bound, and (D) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series and of the Securities of such series have
been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Section 7.7 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.11, 2.12, 2.14,
4.2, 7.7, 7.8, 8.4, 8.5 and 8.6 in respect of the Securities of such series
shall survive until the Securities of such series are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.7 and 8.5 in respect
of the Securities of such series shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge
of the Company's obligations under the Securities of such series and this
Indenture with respect to the Securities of such series except for those
surviving obligations specified above.
SECTION 8.2 Defeasance. The Company will be deemed to have
paid and will be discharged from any and all obligations in respect of the
Securities of any series, the provisions of this Indenture will, except as
provided below, no longer be in effect with respect to the Securities of such
series, the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same and the Securities of any such series will
no longer be outstanding pursuant to Section 2.9; provided that the following
conditions shall have been satisfied:
(A) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the principal of and
interest on the Securities of such series, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by
the Trustee, to pay and discharge the principal of and accrued
interest on the outstanding Securities of such series to maturity or
earlier redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
(B) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound;
(C) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
(D) the Company shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under this Section 8.2 and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been
exercised or (y) an Opinion of Counsel to the same effect as the
ruling described in clause (x) above and (2) an Opinion of Counsel to
the effect that the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens
under the Uniform Commercial Code, as in effect in each applicable
jurisdiction (the "UCC"); and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2 of the Securities of such series
have been complied with.
The Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6,
2.7, 2.8, 2.11, 2.12, 2.14, 4.2, 7.7, 7.8, 8.4, 8.5 and 8.6 with respect to
the Securities of such series shall survive until such Securities are no
longer outstanding. Thereafter, only the Company's obligations in Sections
7.7 and 8.5 shall survive.
SECTION 8.3 Covenant Defeasance. The Company may omit to
comply with any term, provision or condition set forth in Sections 4.3, 4.4 or
4.5 (or any other specific covenant relating to such series provided for in a
Board Resolution or supplemental indenture pursuant to Section 2.3 which may
by its terms be defeased pursuant to this Section 8.3), and such omission
shall be deemed not to be an Event of Default under clauses (c) or (f) of
Section 6.1, with respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment
of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and
discharge the principal of and interest on the outstanding Securities
of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the
case may be;
(ii) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which
it is bound;
(iii) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the Holders of the Securities of such
series have a valid security interest in the trust funds subject to
no prior liens under the UCC and (B) such Holders will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had
not occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.3 of the Securities of such
series have been complied with.
SECTION 8.4 Application of Trust Money. Subject to Section 8.5
and Article 11, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3,
as the case may be, in respect of the Securities of any series and shall apply
the deposited money and the proceeds from deposited U.S. Government
Obligations in accordance with the Securities of such series and this
Indenture to the payment of principal of and interest on the Securities of
such series; but such money need not be segregated from other funds except to
the extent required by law.
SECTION 8.5 Repayment to Company. Subject to Sections 7.7,
8.1, 8.2 and 8.3, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money
held by them at any time and thereupon shall be relieved from all liability
with respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them under this Indenture that
remains unclaimed for two years; provided that the Trustee or such Paying
Agent before being required to make any payment to the Company shall cause to
be published at the expense of the Company twice in an Authorized Newspaper in
The City of New York or with respect to any Security the interest on which is
based on the offered quotations in the interbank Eurodollar market for dollar
deposits in an Authorized Newspaper in London or mail to each Holder entitled
to such money at such Holder's address (as set forth in the Security Register)
notice that such money remains unclaimed and that after a date specified
therein (which shall be at least 30 days from the date of such publication or
mailing) any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Holders entitled to such money
must look to the Company for payment as general creditors unless an applicable
law designates another Person, and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
SECTION 8.6 Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations in
accordance with Section 8.1, 8.2 or 8.3, as the case may be, by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
of such series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.1, 8.2 or 8.3 and the Trustee or Paying Agent
shall promptly pay to the Company upon written request any money or U.S.
Government Obligations deposited with it pursuant thereto; provided that if
the Company has made any payment of interest on or principal of any Securities
of such series because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act as then in effect;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee; or
(5) to establish the form or forms or terms of the Securities
of any series or of any coupons appertaining to such Securities
pursuant to Section 2.3;
(6) to provide for uncertificated or Unregistered Securities
and to make all appropriate changes for such purpose; and
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
In no event shall a supplemental indenture executed under this
Section 9.1 provide that Unregistered Securities may be issued in exchange for
Registered Securities, including Registered Securities that were previously
issued in exchange for Unregistered Securities, or that the rights of holders
of Senior Indebtedness may be adversely affected in any material respect
thereby without their consent.
SECTION 9.2 With Consent of Holders. The Company and the
Trustee may amend this Indenture and the Securities of any series for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or modifying in any manner the rights
of Holders under this Indenture of such Securities, but only with the written
consent of the Holders of a majority in principal amount of the outstanding
Securities of each series affected by such supplemental indenture voting
separately; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each outstanding Security of each series
affected thereby,
(i) extend the stated maturity of the principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the principal amount thereof or the rate
of interest thereon (including any amount in respect of original
issue discount), or any premium payable with respect thereto, or
adversely affect the rights of such Holder under any mandatory
redemption or repurchase provision or any right of redemption or
repurchase at the option of the Company or such Holder, or reduce the
amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 6.2 or the amount thereof provable in bankruptcy,
or change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment
on or after the due date therefor, or change the manner of
determining any of the foregoing established pursuant to Section 2.3
for the Securities of any series;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture;
(iii) waive a Default in the payment of principal of or interest
on any Security of such Holder; or
(iv) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section
4.2; or
(v) modify any of the provisions of this Section 9.2, 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.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall give to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver.
The Company will mail supplemental indentures to Holders upon request. Any
failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver.
In no event shall a supplemental indenture executed under this
Section 9.2 provide that Unregistered Securities may be issued in exchange for
Registered Securities, including Registered Securities that were previously
issued in exchange for Unregistered Securities, or that the rights of holders
of Senior Indebtedness may be adversely affected in any material respect
thereby without their consent.
SECTION 9.3 Revocation and Effect of Consent. Until an
amendment, supplemental indenture or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
Security of the consenting Holder, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of its Security. Such revocation shall
be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective with respect to any Securities
affected thereby on receipt by the Trustee of written consents from the
requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than 10 nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at 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
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (v) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (i) through (v) of Section 9.2, the amendment,
supplemental indenture or waiver shall bind each such Holder who has consented
to it and every subsequent Holder of a Security that evidences the same
indebtedness as the Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on
any Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article 9 is authorized or permitted by
this Indenture, stating that all requisite consents have been obtained or that
no consents are required and stating that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
customary exceptions. Subject to the preceding sentence, the Trustee shall
sign such amendment, supplement or waiver if the same does not adversely
affect the rights of the Trustee. The Trustee may, but shall not be obligated
to, execute any such amendment, supplement or waiver that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to
the requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Notices. Any notice or communication shall
be sufficiently given if written and (a) if delivered in person when received
or (b) if mailed by first class mail 5 days after mailing, or (c) as between
the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:
if to the Company:
Illinois Central Railroad Company
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
Attention: Chief Financial Officer
Telephone No.: (312) 755-7500
Telecopy No.: (312) 755-7839
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Samuel F. Pryor, III
Telephone No.: (212) 450-4000
Telecopier No.: (212) 450-4800
if to the Trustee:
The Chase Manhattan Bank, N.A.
4 Chase MetroTech Center, 3rd Floor
Brooklyn, New York 11245
Attention: Global Trust Services
Telephone No.: (718) 242-7291
Telecopier No.: (718) 242-3529
with a copy to:
Seward & Kissel
One Battery Park Plaza
New York, New York 10004
Attention: Kalyan Das
Telephone No.: (212) 574-1391
Telecopier No.: (212) 480-8421
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities by publication at least twice in an
Authorized Newspaper in London and in any other place of payment for such
Unregistered Securities, and by mailing to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of
the Trust Indenture Act at such addresses as were so furnished to the Trustee
and to Holders of Registered Securities by mailing to such Holders at their
addresses as they shall appear on the Securities Register. Notice mailed
shall be sufficiently given if so mailed within the time prescribed. Copies
of any such communication or notice to a Holder shall also be mailed to the
Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided in this Section 10.2, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.2 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:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with; and
(ii) an Opinion of Counsel stating that, in the opinion of
such Counsel, all such conditions precedent have been complied with.
SECTION 10.3 Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.4 Evidence of Ownership. The Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
Holder of any Unregistered Security and the Holder of any coupon as the
absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes, and neither
the Company, the Trustee, nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. The fact of the holding by any Holder
of an Unregistered Security, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee, if
such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person
named in such certificate. Any such certificate may be issued in respect of
one or more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities specified
therein shall be presumed to continue for a period of one year from the date
of such certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified in such certificate
shall be produced by some other Person, or (3) the Security specified in such
certificate shall have ceased to be outstanding. Subject to Article 7, the
fact and date of the execution of any such instrument and the amount and
numbers of Securities held by the Person so executing such instrument may also
be proven in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security
shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 10.5 Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.6 Payment Date Other Than a Business Day. If
any date for payment of principal or interest on any Security shall not be a
Business Day at any place of payment for such Security, then payment of
principal of or interest on such Security, as the case may be, need not be
made on such date, but may be made on the next succeeding Business Day at any
place of payment with the same force and effect as if made on such date and no
interest shall accrue in respect of such payment for the period from and after
such date.
SECTION 10.7 Governing Law. The laws of the State of New
York shall govern this Indenture and the Securities.
SECTION 10.8 No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture or
loan or debt agreement of the Company or any Subsidiary of the Company. Any
such indenture or agreement may not be used to interpret this Indenture.
SECTION 10.9 Successors. All agreements of the Company
in this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.10 Duplicate Originals. 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.
SECTION 10.11 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.12 Table of Contents, Headings, Etc. The Table
of Contents 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 and
provisions hereof.
SECTION 10.13 Incorporators, Stockholders, Officers and
Directors of Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security or any coupons appertaining thereto, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such
or against any past, present or future stockholder, officer, director or
employee, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such personal liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
SECTION 10.14 Judgment Currency. The Company agrees, to
the fullest extent that it may effectively do so under applicable law, that
(a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of or interest on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
ARTICLE 11
SUBORDINATION OF SECURITIES
SECTION 11.1 Subordination. The Company, for itself, its
successors and assigns, covenants and agrees, and each Holder of a Security,
by its acceptance thereof, likewise covenants and agrees, that the payment of
the principal of, premium, if any, and interest on, each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter in this Article 11 set forth, in right of payment to the prior
payment in full of all Senior Indebtedness.
SECTION 11.2 Rights of Holders of Senior Indebtedness.
(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
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) in money of all Senior
Indebtedness before the Holders of Securities are entitled to receive any
payment on account of the principal of or interest on the indebtedness
evidenced by the Securities, 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 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 11 with respect to the
Securities, 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,
premium if any, or interest on the Securities 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 11.2 shall not be applicable), the holders of
all Senior Indebtedness shall be entitled to receive payment in full in money
of such Senior Indebtedness before such holders of Securities are entitled to
receive any payment on account of the principal of or interest on the
Securities; and
(d) No holder of Senior Indebtedness shall be prejudiced in
his right to enforce subordination of the Securities by any act or failure to
act on the part of the Company.
SECTION 11.3 Payments and Distributions. In the event
that, notwithstanding the provisions of Section 11.2, 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 11 with respect to the Securities, 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 11.2 before all Senior Indebtedness is paid in full in money,
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, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall have
been paid in full in money, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
From and after the payment in full in money of all Senior
Indebtedness, the Holders of Securities (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 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 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 of Securities, 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 11 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 11 or elsewhere in this Indenture or in the
Securities is intended to or shall impair as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders, the
obligation of the Company, which is unconditional and absolute, to pay to the
Holders the principal of and interest on the Securities 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 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
11.2, to receive cash, property or securities of the Company otherwise payable
or deliverable to the Holders of the Securities.
Upon any distribution or payment in connection with any
proceedings or sale referred to in subsection (a) of Section 11.2, the
Trustee, subject as between the Trustee and the Holders to the provisions of
Sections 7.1 and 7.2 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 11. 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 11.3, 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 11.3, 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 of
Securities or the Company or any other person moneys or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of Article 11 of
this Indenture or otherwise.
SECTION 11.4 Payments by the Company. Nothing contained
in this Article 11 or elsewhere in this Indenture, or in any of the
Securities, shall prevent at any time, (a) the Company from making payments at
any time of principal of or interest on the Securities, except under the
conditions described in Section 11.2 or during the pendency of any proceedings
or sale therein referred to, provided, however, that payments of principal of
or interest on the Securities shall only be made by the Company within three
business days of 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, if at the time of
such deposit the Trustee did not have written notice in accordance with
Section 11.6 of any event prohibiting the making of such deposit by the
Company or if in the event of redemption, the Trustee did not have such
written notice prior to the time that the notice of redemption pursuant to
Section 3.2 was given (which notice of redemption shall in no event be given
more than 60 days prior to the date fixed for redemption).
SECTION 11.5 Appointment of the Trustee by
Securityholders. Each Securityholder by his acceptance of a Security
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination as
provided in this Article 11 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 Securityholder's Securities in the form required in said proceedings
and cause said claim to be approved.
SECTION 11.6 Notice to Trustee. Notwithstanding the
provisions of this Article 11 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 interest on any Security) the Trustee shall not
have received with respect to such monies the notice provided for in this
Section 11.6, 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 such two business days prior to such date.
SECTION 11.7 Rights of Trustee. The Trustee shall be
entitled to all the rights set forth in this Article 11 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.
SECTION 11.8 Paying Agent. 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 11 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 11 in place of
the Trustee.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
ILLINOIS CENTRAL RAILROAD COMPANY
Attest: as the Company
________________
By:
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.
Attest: as Trustee
________________
By:
Name:
Title:
Exhibit 5
May 14, 1996
Illinois Central Railroad Company
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
Dear Sirs:
We have acted as counsel for Illinois Central Railroad Company,
a Delaware corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-3 (the "Registration Statement") being filed
with the Securities and Exchange Commission. The Registration Statement
relates to the registration under the Securities Act of 1933, as amended, of
$200,000,000 aggregate principal amount of debt securities (the "Securities")
of the Company. The Securities are to be issued pursuant to the proposed
Indenture to be dated as of May , 1996 (the "Senior Indenture"), between the
Company and The Chase Manhattan Bank, N.A., as trustee, or the proposed
Indenture to be dated as of May , 1996 (the "Subordinated Indenture")
between the Company and The Chase Manhattan Bank, N.A., as trustee.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for purposes of this opinion.
Based upon the foregoing, we are of the opinion that when (i)
the Registration Statement becomes effective, (ii) duly authorized officers of
the Company have taken all necessary action to approve the forms and terms of
the Securities, (iii) the proposed Senior Indenture and the proposed
Subordinated Indenture shall have been qualified under the Trust Indenture Act
of 1939, as amended, and duly executed and delivered by duly authorized
officers of the Company and the Trustee, and (iv) the Securities are executed
and authenticated in accordance with the terms of the Senior Indenture or the
Subordinated Indenture, as the case may be, and delivered to the purchasers
thereof upon payment of the agreed upon consideration therefor, the Securities
will be validly issued and binding obligations of the Company.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the Federal
laws of the United States of America, and the General Corporation Law of the
State of Delaware.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other
purposes or relied upon or furnished to any other person without our prior
written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. We also consent to the reference to us under
the caption "Legal Matters" in the Prospectus contained in the Registration
Statement.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 12.1
<TABLE>
<CAPTION>
ILLINOIS CENTRAL RAILROAD COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
($ in millions)
Years Ended December 31,
----------------------------------------------------------------------------------------------
Proforma
Fixed Charge Coverage 1995 1995 1994 1993 1992 1991
-------------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Income from continuing
operations
before income taxes,
extraordinary
item and cumulative
effect of
accounting changes $185.2 $198.3 $170.9 $148.6 $111.0 $ 96.0
Fixed charges 55.2 42.1 45.2 49.9 61.1 75.9
Capitalized interest (1.3) (1.3) (1.4) (0.8) (0.6) (0.4)
-------------- ------------ ------------ ------------ ------------ ------------
Earnings base for fixed
charge ratio $239.1 $239.1 $214.7 $197.7 $171.5 $171.5
============== ============ ============ ============ ============ ============
Interest expense $ 42.2 $ 29.1 $ 27.5 $ 33.1 $ 44.5 $ 59.2
Capitalized interest 1.3 1.3 1.4 0.8 0.6 0.4
Portion of non-capitalized
lease
payments 11.7 11.7 16.3 16.0 16.0 16.3
-------------- ------------ ------------ ------------ ------------ ------------
Fixed charges $ 55.2 $ 42.1 $ 45.2 $ 49.9 $ 61.1 $ 75.9
============== ============ ============ ============ ============ ============
Ratio of earnings to fixed
charges 4.33 5.68 4.75 3.96 2.81 2.26
============== ============ ============ ============ ============ ============
</TABLE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
ILLINOIS CENTRAL RAILROAD COMPANY
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
January 25, 1996 (except with respect to the matter discussed in Note 16, as
to which the date is February 29, 1996), included in Illinois Central Railroad
Company's Form 10-K for the year ended December 31, 1995 and to all references
to our Firm included in this Registration Statement.
Arthur Andersen LLP
Chicago, Illinois
May 15, 1996
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee for
delayed offering pursuant to Section 305 (b) (2))
==============================================================================
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
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
________________
Illinois Central Railroad Company
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
36-2728842
(I.R.S. Employer Identification No.)
445 North Cityfront Plaza Drive
Chicago, Illinois
(Address of principal executive offices)
60611-5504
(Zip Code)
__________________________________
Senior & Subordinated Debt Securities
(Title of the indenture securities)
==============================================================================
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.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington,
D. C.
(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.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control
with the obligor.
(See Note on Page 2.)
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 . (See Exhibit T-1 (Item 12), Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York
(National Association) to commence business and a copy of
approval of merger of said corporations, all of which documents
are still in effect. (See Exhibit T-1 (Item 12), Registration
No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437.)
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 16) (25.1), Registration No. 33-60809.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor is in
default. (Not applicable.)
*6. -- The consents of United States institutional trustees required by
Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
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.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of
the Exhibit heretofore filed with the Securities and Exchange Commission,
to which there have been no amendments or changes.
___________________
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 15th day of May, 1996.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: Valerie Dunbar
------------------
Vice President
Exhibit 7
---------
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of business on December
31, 1995, published in response to call made by Comptroller of the
Currency, under title 12, United States Code, Section 161.
Charter Number 2370 Comptroller of the Currency
Statement of Resources and Liabilities Northeastern District
Thousands
ASSET of Dollars
------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 5,574,000
Interest-bearing balances 5,950,000
Held to maturity securities 0
Available-for-sale securities 6,731,000
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds sold 2,488,000
Securities purchased under agreements to resell 35,000
Loans and lease financing receivable:
Loans and leases, net of unearned income $ 57,786,000
LESS: Allowance for loan and lease losses 1,114,000
LESS: Allocated transfer risk reserve ------------
0
Loans and leases, net of unearned income, allowance, and
reserve 56,672,000
Assets held in trading accounts 12,994,000
Premises and fixed assets (including capitalized leases) 1,723,000
Other real estate owned 364,000
Investments in unconsolidated subsidiaries and associated
companies 28,000
Customers' liability to this bank on acceptances outstanding 944,000
Intangible assets 1,343,000
Other assets 5,506,000
-----------
TOTAL ASSETS $100,352,00
===========
LIABILITIES
Deposits:
In domestic offices $ 32,483,000
Noninterest-bearing $ 13,704,000
Interest-bearing 18,799,000
-------------
In foreign offices, Edge and Agreement subsidiaries,
and IBFs 37,639,000
Noninterest-bearing $ 3,555,000
Interest-bearing 34,084,000
-------------
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased 1,572,000
Securities sold under agreements to repurchase 211,000
Demand notes issued to the U.S. Treasury 25,000
Trading liabilities 9,146,000
Other borrowed money:
With original maturity of one year or less 2,562,000
With original maturity of more than one year 379,000
Mortgage indebtedness and obligations under capitalized leases 40,000
Bank's liability on acceptances executed and outstanding 949,000
Subordinated notes and debentures 1,960,000
Other liabilities 5,411,000
TOTAL LIABILITIES 92,377,000
Limited-life preferred stock and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 921,000
Surplus 5,285,000
Undivided profits and capital reserves 1,751,000
Net unrealized holding gains (losses) on available-for-sale
securities 7,000
Cumulative foreign currency translation adjustments 11,000
TOTAL EQUITY CAPITAL 7,975,000
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL $ 100,352,000
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the
above named bank do hereby declare that this Report of Condition is true
and correct to the best of my knowledge and belief.(Signed) Lester J.
Stephens, Jr. We the undersigned directors, attest to the correctness of
this statement of resources and liabilities. We declare that it has been
examined by us, and to the best of our knowledge and belief has been
prepared in conformance with the instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Donald Trautlein Directors
(Signed) Richard J. Boyle
