<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 15, 1999
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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ILLINOIS TOOL WORKS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 36-1258310
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
</TABLE>
3600 WEST LAKE AVENUE
GLENVIEW, ILLINOIS 60025-5811
(847) 724-7500
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive office)
---------------------
STEWART S. HUDNUT
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ILLINOIS TOOL WORKS INC.
3600 WEST LAKE AVENUE
GLENVIEW, ILLINOIS 60025-5811
(847) 724-7500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
<TABLE>
<S> <C> <C>
DEWEY B. CRAWFORD TERRENCE R. BRADY
GARDNER, CARTON & DOUGLAS WINSTON & STRAWN
321 NORTH CLARK STREET, SUITE 2900 35 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60610 CHICAGO, ILLINOIS 60601
(312) 644-3000 (312) 558-5600
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(2) OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
Debt Securities......................... $500,000,000(1) 100% $500,000,000 $139,000
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</TABLE>
(1) Or, if any Debt Securities are to be issued at a discount, such greater
amount as shall result in an aggregate offering price to the public as shall
not exceed $500,000,000.
(2) Estimated solely for purposes of determining the amount of the registration
fee.
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
SUBJECT TO COMPLETION, DATED JANUARY 15, 1999
PROSPECTUS
#ITW LOGO
ILLINOIS TOOL WORKS INC.
$500,000,000
DEBT SECURITIES
---------------------
Illinois Tool Works Inc. may use this prospectus from time to time to offer
and sell its debt securities in one or more offerings with a total initial
public offering price or purchase price of up to $500,000,000 or the equivalent
in one or more foreign currencies. The debt securities may be offered in one or
more separate series on terms to be determined at the time of sale. We may sell
the debt securities for U.S. dollars or a foreign or composite currency and
payments on debt securities may be made in U.S. dollars or a foreign or
composite currency. Debt securities may be issued as individual securities in
registered form without coupons or as one or more global securities in
registered form. We may offer the debt securities directly to purchasers or
through agents, dealers or underwriters or a syndicate of underwriters.
We will provide specific terms for these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
THE DATE OF THIS PROSPECTUS IS JANUARY , 1999.
<PAGE> 3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, we may sell the debt securities described in this
prospectus in one or more offerings up to a total principal amount or initial
purchase price of $500,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where To Find More Information."
ILLINOIS TOOL WORKS INC.
GENERAL
Through 400 decentralized business units, we develop and manufacture
fasteners, components, assemblies and systems for customers throughout the
world. Our products include:
- plastic and metal components, fasteners and assemblies
- industrial fluids and adhesives
- fastening tools, welding equipment and consumables
- systems and consumables for consumer and industrial packaging
- marking, labeling and identification systems
- industrial spray coating equipment and systems
- quality measurement application equipment and systems
We strive to improve our customers' competitive positions by increasing
their productivity and quality while reducing their manufacturing and assembly
costs. We serve the construction, general industrial, automotive, food and
beverage, industrial capital goods, paper products, consumer durables and
electronics markets. We also invest a portion of our cash flow in commercial
real estate, equipment leasing, affordable housing, property development and
mortgage securities.
Our international operations, which are conducted in 34 countries,
accounted for approximately 35% of our operating revenues for the quarter ended
September 30, 1998.
Our principal executive offices are located at 3600 West Lake Avenue,
Glenview, Illinois 60025; our telephone number is (847) 724-7500; and our World
Wide Web home site is http://www.itwinc.com.
WHERE TO FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our SEC filings are
available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the SEC's
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549 and at
the SEC's regional offices located at Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, New York, New
York 10048. You can call the SEC at 1-800-SEC-0330 for further information on
the public reference rooms.
Our reports, proxy statements and other information may also be inspected
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005 and the Chicago Stock Exchange, Incorporated, 440 South LaSalle
Street, Chicago, Illinois 60605.
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The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus and information that we file later with the
SEC will automatically update and supersede the information included or
incorporated by reference in this prospectus. We incorporate by reference the
documents listed below and any future filings with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell all of
the debt securities:
- Annual Report on Form 10-K for the year ended December 31, 1997; and
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998.
You may request a free copy of these filings by writing or telephoning
Stewart S. Hudnut, Corporate Secretary, Illinois Tool Works Inc., 3600 West Lake
Avenue, Glenview, Illinois 60025-5811, telephone (847) 724-7500.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
USE OF PROCEEDS
Unless we specify otherwise in the applicable prospectus supplement, the
net proceeds from the sale of the debt securities will be used for general
corporate purposes, including capital expenditures, working capital,
acquisitions and the repayment of indebtedness. We have not allocated a specific
portion of the net proceeds for any particular use at this time. Until we apply
the net proceeds for specific purposes, we may invest such net proceeds in
marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
Our consolidated ratio of earnings to fixed charges for each of the years
in the five-year period ended December 31, 1997 and the nine-month periods ended
September 30, 1997 and 1998 is set forth below.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
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1993 1994 1995 1996 1997 1997 1998
---- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.......... 8.35 13.15 14.67 11.91 11.27 10.61 11.69
</TABLE>
For the purpose of calculating the ratio of earnings to fixed charges,
earnings consist of income before income taxes plus fixed charges. Fixed charges
consist of interest expense plus that portion of rental expense that is deemed
to represent interest.
DESCRIPTION OF DEBT SECURITIES
GENERAL
We provide information to you about the debt securities in up to three
separate documents that progressively provide more detail:
1. This prospectus provides general information that may not apply to
each series of debt securities.
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<PAGE> 5
2. The prospectus supplement is more specific than this prospectus. To
the extent the information provided in the prospectus supplement differs
from this prospectus, you should rely on the prospectus supplement.
3. The pricing supplement, if used, provides final details about a
specific series of debt securities. To the extent the pricing supplement
differs from this prospectus or the prospectus supplement, you should rely
on the pricing supplement.
The debt securities will be issued under an indenture (we refer to the
indenture, as supplemented from time to time, as the "Indenture") between ITW
and Harris Trust and Savings Bank, as Trustee. The following summary of certain
provisions of the debt securities and the Indenture is not complete and is
subject to the detailed provisions of the Indenture. We have filed a copy of the
Indenture as an exhibit to the Registration Statement. Whenever particular
provisions or defined terms in the Indenture are referred to in this prospectus,
such provisions or defined terms are incorporated by reference in this
prospectus. Article or Section references used in this prospectus are references
to the Indenture.
The debt securities will be our direct, unsecured obligations. They will
rank on a parity with all of our other unsecured and unsubordinated
indebtedness.
The Indenture provides that we may issue the debt securities from time to
time in one or more series without limitation on the amount. (Section 2.01)
Currently, $125,000,000 of 5 7/8% Notes due March 1, 2000 are outstanding under
the Indenture.
Unless we indicate otherwise in the applicable prospectus supplement,
principal of and any premium or interest on the debt securities will be payable,
and the debt securities may be transferred or exchanged without payment of any
charge (other than any tax or other governmental charge payable in connection
therewith), at the office or agency of the Trustee in Chicago, Illinois.
However, we may elect that payment of interest on registered debt securities be
made by check mailed to the address of the appropriate person as it appears on
the security register or by wire transfer as instructed by the appropriate
person. (Sections 2.06, 4.01 and 4.02)
The applicable prospectus supplement will include specific terms relating
to the offering of specific debt securities. These may include some or all of
the following:
- the title, denominations, amount and price of the debt securities;
- the maturity of the debt securities;
- the interest rates of the debt securities;
- the currency or currency unit of the debt securities;
- any redemption or sinking fund terms;
- any provisions for discharge;
- whether the debt securities will be registered or unregistered; and
- other specific terms associated with the debt securities. (Section 2.01)
Debt securities may be issued as Original Issue Discount Securities to be
offered and sold at a substantial discount below their stated principal amount.
In such event, the Federal income tax consequences and other special
considerations will be described in the applicable prospectus supplement. An
"Original Issue Discount Security" is any debt security that provides for the
declaration of acceleration of the maturity of an amount less than the principal
amount of the security upon the occurrence of an event of default and the
continuation of an event of default. (Section 1.01)
FORM OF SECURITIES
We may issue the debt securities in fully registered form without coupons
or in unregistered form with or without coupons. We also may issue the debt
securities in the form of one or more temporary or
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permanent global securities. Global securities are issued to a depository that
holds the securities for the benefit of investors. Book-entry debt securities
will be issued as registered global securities.(Section 2.03)
If any debt securities are issuable in temporary or permanent global form,
the applicable prospectus supplement will describe the circumstances, if any,
under which beneficial owners of interests in the global security may obtain
definitive debt securities. Payments on a permanent global debt security will be
made in the manner described in the prospectus supplement.
COVENANTS
The following covenants apply with respect to all series of debt
securities, unless we specify otherwise in the applicable prospectus supplement.
Both covenants are subject to the provision for exempted indebtedness described
below. We will describe any additional covenants for a particular series of debt
securities in the prospectus supplement.
For your reference, we have provided below definitions of the capitalized
terms used in the description of the covenants.
Limitation on Liens
We will not, nor will we permit any Restricted Subsidiary to, issue, assume
or guarantee any debt for money borrowed if such debt is secured by a mortgage,
security interest, lien, pledge or other encumbrance (referred to in this
prospectus as a "lien") on any Principal Property, or on any shares of stock or
indebtedness of any Restricted Subsidiary, without in any such case effectively
providing that the debt securities are secured equally and ratably. These
restrictions do not apply to debt secured by:
- liens on property of a corporation existing at the time it becomes a
subsidiary or at the time it is merged into or consolidated with ITW or a
subsidiary;
- liens on property existing at the time of its acquisition and certain
purchase money liens;
- liens securing the cost of construction of new plants, incurred within
180 days of completion of construction;
- liens securing the debt of a Restricted Subsidiary owing to ITW or
another Restricted Subsidiary;
- liens in connection with the issuance of certain industrial revenue bonds
or similar financings; and
- any extensions, renewals or replacements, in whole or in part, of any
lien referred to above. (Section 4.05)
Limitation on Sale and Lease-Back
We will not, nor will we permit any Restricted Subsidiary to, engage in a
sale and lease-back transaction of any Principal Property (except for certain
temporary leases) unless:
- we or the Restricted Subsidiary could (subject to the limitation on
liens) incur debt secured by a lien on the Principal Property to be
leased without equally and ratably securing the debt securities; or
- within 180 days following the transaction, we retire long-term debt equal
to the value of the transaction. (Section 4.06)
Exempted Indebtedness
We and our Restricted Subsidiaries may incur debt and enter into sale and
lease-back transactions without regard to the two covenants described above if
the sum of such debt and the value of such sale and lease-back transactions on a
cumulative basis does not exceed 10% of the Consolidated Net Tangible Assets
(which is total assets less current liabilities, goodwill and other intangibles)
as shown on our audited consolidated balance sheet. (Section 4.07)
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CONSOLIDATION OR MERGER
We may consolidate or merge with, or sell all or substantially all of our
assets to, another corporation. The remaining or acquiring corporation must
assume all of our responsibilities and liabilities under the Indenture,
including the payment of all amounts due on the debt securities and performance
of the covenants. (Section 11.01) Under these circumstances, if any Principal
Property, shares of stock or indebtedness of a Restricted Subsidiary would be
subject to a lien, we will equally and ratably secure the debt securities.
(Section 11.02)
DEFINITIONS
"Principal Property" means any manufacturing plant or other facility within
the United States that we or a subsidiary own or lease, unless our Board of
Directors determines that the plant or facility, together with any others so
determined, is not of material importance to the total business of ITW and its
Restricted Subsidiaries. (Article One)
"Restricted Subsidiary" means any subsidiary (other than a leasing or
finance subsidiary) that owns or leases a Principal Property if: (1) its
property is located in the United States, (2) substantially all of its business
is carried on in the United States, or (3) it is incorporated in the United
States. (Article One)
EVENTS OF DEFAULT
An event of default for any series of debt securities includes the
following:
- failure to pay interest on any debt securities for 30 days;
- failure to pay principal of or premium or sinking fund payment on any
debt securities when due;
- failure to perform any of the other covenants or agreements in the
Indenture relating to debt securities of that series that continues for
60 days after notice to ITW by the Trustee or holders of at least 25% in
aggregate principal amount of the outstanding debt securities of that
series; or
- certain events of bankruptcy, insolvency or reorganization of ITW.
(Section 6.01)
An event of default with respect to a particular series of debt securities
does not necessarily constitute an event of default with respect to any other
series. Additional events of default may be prescribed for the benefit of
holders of certain series of debt securities and described in the applicable
prospectus supplement. (Section 10.01) The Indenture provides that the Trustee
will, with certain exceptions, notify the holders of debt securities of each
series of any event of default known to it and affecting that series within 90
days after the occurrence thereof. (Section 6.07)
If an event of default is continuing for any series of debt securities, the
Trustee or the holders of not less than 25% in aggregate principal amount of the
affected series of debt securities may declare the principal amount (or, if the
debt securities of that series are Original Issue Discount Securities, the
specified portion of the principal amount) of that series to be due and payable.
In such a case, subject to certain conditions, the holders of a majority in
principal amount of such series then outstanding can annul the declaration and
waive past defaults. (Sections 6.01 and 6.06)
We are required to file an annual officers' certificate with the Trustee
concerning our compliance with the Indenture. (Section 4.08) Subject to the
provisions of the Indenture relating to the duties of the Trustee, the Trustee
is not obligated to exercise any of its rights or powers at the request or
direction of any of the holders unless they have offered the Trustee reasonable
security or indemnity. (Sections 7.01 and 7.02) If they provide reasonable
security or indemnity, the holders of a majority in principal amount of the
outstanding debt securities of each series affected by an event of default may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee under the Indenture or exercising any of the Trustee's
trusts or powers with respect to that series. (Section 6.06)
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MODIFICATION AND AMENDMENT OF THE INDENTURE
We may enter into supplemental indentures with the Trustee without the
consent of the holders of the debt securities to, among other things:
- evidence the assumption by a successor corporation of our obligations;
- appoint additional, separate or successor trustees to act under the
Indenture;
- add covenants for the protection of the holders of the debt securities;
- cure any ambiguity or correct any inconsistency in the Indenture; and
- establish the form or terms of debt securities of any series.
With the consent of the holders of a majority in principal amount of the
debt securities of each series at the time outstanding, we may execute
supplemental indentures with the Trustee to add provisions or change or
eliminate any provision of the Indenture or any supplemental indenture or to
modify the rights of the holders of those debt securities. However, no such
supplemental indenture will (1) extend the fixed maturity of any debt security,
or reduce the principal amount (including in the case of a discounted debt
security the amount payable upon acceleration of the maturity thereof), reduce
the rate or extend the time of payment of any interest, reduce any premium
payable upon redemption, or change the currency in which any debt security is
payable, without the consent of the holder of each affected debt security, or
(2) reduce the aforesaid majority in principal amount of the debt securities of
any series, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all debt
securities of such series. (Sections 10.01 and 10.02)
DISCHARGE OF INDENTURE
At our option, we (1) will be discharged from all obligations under the
Indenture in respect of the debt securities of a series (except for certain
obligations to register the transfer or exchange of those debt securities,
replace stolen, lost or mutilated debt securities, maintain paying agencies and
hold monies for payment in trust) or (2) need not comply with certain covenants
of the Indenture (including the limitation on liens and the limitation on sale
and lease-back) and will not be limited by any restrictions with respect to
merger, consolidation or sales of assets with respect to those debt securities,
in each case if we deposit with the Trustee, in trust, money or U.S. government
obligations (or a combination thereof) sufficient to pay the principal
(including any mandatory sinking fund payments) of and any premium or interest
on those debt securities when due. In order to select either option, we must
provide the Trustee with an opinion of counsel or a ruling from, or published
by, the Internal Revenue Service, to the effect that holders will not recognize
income, gain or loss for Federal income tax as if we had not exercised either
option. (Sections 12.01(a) and 12.02(b))
In the event we exercise our option under (2) above with respect to the
debt securities of any series and the debt securities of that series are
declared due and payable because of the occurrence of any event of default other
than default with respect to such obligations, the amount of money and U.S.
government obligations on deposit with the Trustee will be sufficient to pay
amounts due on the debt securities of such series at the time of their stated
maturity but may not be sufficient to pay amounts due on the debt securities of
such series at the time of the acceleration resulting from such event of
default. We would remain liable, however, for such payments.
CONCERNING THE TRUSTEE
We maintain lines of credit and have customary banking relationships with
Harris Trust and Savings Bank, the Trustee under the Indenture.
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PLAN OF DISTRIBUTION
We may offer debt securities directly, through agents or dealers or through
one or more underwriters or a syndicate of underwriters in an underwritten
offering. In the prospectus supplement for a particular offering, we will
describe how the offering of debt securities will be made, including the names
of any underwriters, the purchase price of the securities, the proceeds of the
offering any underwriters' discounts, concessions or commissions.
If we use underwriters or dealers in the sale, they will acquire the debt
securities for their own account and may resell them in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. We may offer debt
securities to the public either through underwriting syndicates represented by
managing underwriters or by underwriters without a syndicate. Unless we state
otherwise in the applicable prospectus supplement, the obligations of the
underwriters to purchase debt securities will be subject to certain conditions
precedent, and the underwriters must purchase all of such debt securities if
they buy any of them. The underwriters may change any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
from time to time.
We also may sell debt securities directly or through designated agents. We
will name any agent involved in the offer or sale of debt securities and
describe any commissions payable by us to such agent in the applicable
prospectus supplement. Unless we indicate otherwise, an agent will act on a best
efforts basis for the period of its appointment.
Any underwriters, dealers or agents participating in the distribution of
debt securities may be deemed to be underwriters under the Securities Act of
1933, as amended. Furthermore, any discounts, concessions or commissions
received by them on the sale or resale of debt securities may be deemed to be
underwriting discounts and commissions under the Securities Act. We will
indemnify underwriters and agents against certain civil liabilities, including
liabilities under the Securities Act. These underwriters and agents may be
entitled to contribution with respect to payments that the underwriters or
agents may be required to make in respect of such liabilities. These
underwriters and agents may be customers of, engage in transactions with, or
perform services for us in the ordinary course of business.
We may indicate in the applicable prospectus supplement that we have
authorized underwriters or agents to solicit offers by certain specified
institutions to purchase debt securities from us at the offering price pursuant
to delayed delivery contracts providing for payment and delivery on a specified
date or dates in the future. These delayed delivery contracts will be subject
only to those conditions described in the prospectus supplement and to the
condition that at the time of delivery the purchase of debt securities shall not
be prohibited under the laws of the jurisdiction to which the purchaser is
subject. The prospectus supplement will describe any commission payable for the
solicitation of such contracts.
LEGAL OPINIONS
Stewart S. Hudnut, who is our Senior Vice President, General Counsel and
Secretary, will issue an opinion about the legality of the offered securities
for us. Gardner, Carton & Douglas, Chicago, Illinois, will issue an opinion for
us with respect to certain other matters. Winston & Strawn, Chicago, Illinois,
will pass on the validity of the offered securities for any underwriters or
agents.
As of December 15, 1998, Mr. Hudnut owned 6,000 shares of ITW common stock
directly and 778 shares of ITW common stock indirectly through the ITW Savings &
Investment Plan. As of the same date, Mr. Hudnut held options to acquire an
additional 104,450 shares. As of December 15, 1998, a partner of Gardner, Carton
& Douglas working on these matters owned 4,000 shares of ITW common stock.
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EXPERTS
The consolidated financial statements and schedule appearing in our Annual
Report on Form 10-K for the year ended December 31, 1997 incorporated by
reference in this prospectus and elsewhere in the registration statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses relating to the registration of debt will be borne by Illinois
Tool Works Inc. ("ITW"). Except for the Securities and Exchange Commission
registration fee and the rating agency fees, the following expenses are
estimates:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $139,000
Legal fees and expenses..................................... 100,000
Accountants' fees........................................... 50,000
Printing fees............................................... 35,000
Trustee's fees and expenses................................. 12,000
Rating Agency fees.......................................... 363,000
Miscellaneous............................................... 26,000
--------
Total............................................. $725,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") permits a
Delaware corporation to indemnify directors and officers under certain
circumstances. ITW's restated certificate of incorporation and by-laws provide
that ITW shall, subject to certain limitations, indemnify its directors and
officers against expenses (including attorneys' fees, judgments, fines and
certain settlements) actually and reasonably incurred by them in connection with
any suit or proceeding to which they are a party so long as they acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to a criminal action or
proceeding, so long as they had no reasonable cause to believe their conduct to
have been unlawful.
Section 102 of the DGCL permits a Delaware corporation to include in its
certificate of incorporation a provision eliminating or limiting a director's
liability to a corporation or its stockholders for monetary damages for breaches
of fiduciary duty. DGCL Section 102 provides, however, that liability for
breaches of the duty of loyalty, acts or omissions not in good faith or
involving intentional misconduct, or knowing violation of the law, and the
unlawful purchase or redemption of stock or payment of unlawful dividends or the
receipt of improper personal benefits cannot be eliminated or limited in this
manner. ITW's restated certificate of incorporation includes a provision that
eliminates, to the fullest extent permitted, director liability for monetary
damages for breaches of fiduciary duty.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The Exhibits to this Registration Statement are listed in the Index to
Exhibits.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(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 volume of
II-1
<PAGE> 12
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
forth in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in 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 (the "Exchange Act") that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at the 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) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act 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 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities 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 Securities Act and will be
governed by the final adjudication of such issue.
(d) (1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 13
(e) To file, if necessary, an application for the purpose of
determining the eligibility of the Trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act of 1939, as amended, in accordance
with the rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of such Act.
II-3
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Glenview, Illinois on the 15th day of January 1999.
ILLINOIS TOOL WORKS INC.
(Registrant)
/s/ STEWART S. HUDNUT
--------------------------------------
Stewart S. Hudnut
Senior Vice President, General
Counsel & Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints, jointly and severally, W. James Farrell, Jon C.
Kinney, John Karpan and Stewart S. Hudnut, or any of them (with full power to
each of them to act alone), as his or her true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, for him or her
and on his or her behalf to sign, execute and file this Registration Statement,
any or all amendments (including, without limitation, post-effective amendments)
to this Registration Statement, and any and all additional registration
statements filed pursuant to Rule 462(b) related to this Registration Statement,
and to file the same, with all exhibits thereto and all documents required to be
filed with respect therewith, with the Securities and Exchange Commission or any
regulatory authority, granting unto such attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith and about the
premises in order to effectuate the same as fully to all intents and purposes as
he or she might or could do if personally present, hereby ratifying and
confirming all that such attorneys-in-fact and agents, or any of them, or his,
her or their substitute or substitutes, may lawfully do or cause to be done.
S-1
<PAGE> 15
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on the 15th day of January 1999.
<TABLE>
<C> <S>
/s/ W. JAMES FARRELL Chairman and Chief Executive Officer,
- -------------------------------------------- Director
W. James Farrell (Principal Executive Officer)
/s/ JON C. KINNEY Senior Vice President and Chief Financial
- -------------------------------------------- Officer
Jon C. Kinney (Principal Financial and Accounting Officer)
/s/ WILLIAM F. ALDINGER Director
- --------------------------------------------
William F. Aldinger
/s/ MICHAEL J. BIRCK Director
- --------------------------------------------
Michael J. Birck
/s/ MARVIN D. BRAILSFORD Director
- --------------------------------------------
Marvin D. Brailsford
/s/ SUSAN CROWN Director
- --------------------------------------------
Susan Crown
/s/ H. RICHARD CROWTHER Director
- --------------------------------------------
H. Richard Crowther
/s/ L. RICHARD FLURY Director
- --------------------------------------------
L. Richard Flury
/s/ ROBERT C. MCCORMACK Director
- --------------------------------------------
Robert C. McCormack
/s/ PHILLIP B. ROONEY Director
- --------------------------------------------
Phillip B. Rooney
/s/ HAROLD B. SMITH Director
- --------------------------------------------
Harold B. Smith
Director
- --------------------------------------------
Ormand J. Wade
</TABLE>
S-2
<PAGE> 16
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement
3.1 -- Restated Certificate of Incorporation*
3.2 -- By-Laws of the Corporation
4.1 -- Indenture between Illinois Tool Works Inc. and The First
National Bank of Chicago, as Trustee, dated as of November
1, 1986
4.2 -- First Supplemental Indenture between Illinois Tool Works
Inc. and Harris Trust and Savings Bank, as Trustee, dated as
of May 1, 1990
5.1 -- Opinion and consent of Stewart S. Hudnut, Esq.
10.1 -- Second Amended and Restated Credit Agreement, dated as of
September 30, 1998, among Illinois Tool Works Inc., the
Lenders and The First National Bank of Chicago, as Agent
10.2 -- Letter Agreement, dated November 1, 1998, between Illinois
Tool Works Inc. and The First National Bank of Chicago, as
extended by letter dated December 28, 1998
12.1 -- Computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of Arthur Andersen LLP
23.2 -- Consent of Stewart S. Hudnut, Esq. (included in Exhibit 5.1)
24.1 -- Powers of Attorney (included on the signature page)
25.1 -- Statement of Eligibility on Form T-1 of Harris Trust and
Savings Bank
</TABLE>
- ---------------
* Previously filed as Exhibit 3.1 of the Registrant's Quarterly Report on Form
10-Q for the quarter ended March 31, 1997 and incorporated by reference
herein.
E-1
<PAGE> 1
EXHIBIT 1.1
ILLINOIS TOOL WORKS INC.
UNDERWRITING AGREEMENT
DEBT SECURITIES
To the Representatives named in the attached Schedule I
of the Underwriters named in the attached Schedule II
Ladies and Gentlemen:
1. INTRODUCTORY. Illinois Tool Works Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule II
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives", which term may refer to a single Representative if so
indicated on Schedule I), the principal amount of its debt securities identified
in Schedule I (the "Securities"), to be issued under an Indenture dated as of
November 1, 1986, as supplemented by a First Supplemental Indenture dated as of
May 1, 1990 (the "Indenture") between the Company and Harris Trust and Savings
Bank, as successor trustee (the "Trustee"). (If the firms listed in Schedule II
include only the firms listed in Schedule I, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firms.)
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
under the Securities Act of 1933, as amended (the "Securities Act")
(File No. 333- ), for the registration under the Securities Act of the
Securities. Such registration statement meets the requirements set
forth in Rule 415(a)(1)(x) under the Securities Act and comforms in all
other material respects with the applicable rules and regulations of
the Commission. The Company proposes to file with the Commission
pursuant to Rule 424(b)(2) or (b)(5) under the Securities Act either
(a) a supplement to the form of prospectus included in the registration
statement relating to the Securities and the plan of distribution
thereof or (b), if the Company elects to rely on Rule 434 under the
Securities Act, a Term Sheet (as such term is hereinafter defined)
relating to the Securities that will contain such information as is
required or permitted by Rules 434 and 424(b) under the Securities Act.
Such registration statement has become effective, no stop order
suspending its effectiveness is
<PAGE> 2
in effect and no proceedings for such purpose are pending or, to the
knowledge of the Company, threatened by the Commission. The
registration statement, including the exhibits thereto, is hereinafter
called the "Registration Statement;" the prospectus in the form in
which it appears in the registration statement is hereinafter called
the "Basic Prospectus;" and such supplemented form of prospectus, (i)
in the form in which it is filed with the Commission pursuant to Rule
424(b)(2) or (b)(5) (including the Basic Prospectus as so supplemented)
or (ii), if the Company elects to rely on Rule 434 under the Securities
Act, in the form of the Term Sheet as first filed with the Commission
pursuant to Rule 424(b)(7) (together with the Basic Prospectus), is
hereinafter called the "Final Prospectus." Any preliminary form of the
Final Prospectus that has heretofore been filed pursuant to Rule 424(b)
is hereinafter called the "Preliminary Final Prospectus." Any
abbreviated term sheet that satisfies the requirements of Rule 434
under the Securities Act is hereinafter called the "Term Sheet." Any
reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, and deemed to
be incorporated therein by reference. As used herein, "Incorporated
Documents" means the documents that at the time are incorporated by
reference in the Registration Statement , the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus.
(b) When the Final Prospectus is first filed pursuant to Rule
424(b) under the Securities Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the
Final Prospectus is filed with the Commission and at the Closing Date,
(i) the Registration Statement, as amended as of any such time, the
Final Prospectus, as amended or supplemented as of any such time, and
the Indenture will conform in all material respects with the applicable
requirements of the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the Exchange Act and the
respective rules and regulations thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of any such time, will
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee,
(ii) information, if any, contained in the Registration Statement or
Final Prospectus relating to the
2
<PAGE> 3
Depository Trust Company ("DTC") and its book-entry system, or (iii)
the information contained in or omitted from the Registration Statement
or the Final Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation
of the Registration Statement and the Final Prospectus.
(c) The financial statements, together with the related notes
and schedules thereto, of the Company and its consolidated subsidiaries
included in the Registration Statement and the Final Prospectus fairly
present the financial condition of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations
and cash flows for the periods therein specified; and such financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise stated therein. As used herein,
"consolidated subsidiaries" means each subsidiary of the Company that
is included in the consolidated financial statements of the Company
contained in its annual report to stockholders for 1997 in accordance
with the consolidation policies set forth therein or which would have
been so included if it had been a subsidiary of the Company as of the
date of such consolidated financial statements, and each other
subsidiary of the Company which is included in consolidated financial
statements of the Company prepared from time to time thereafter.
(d) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus and
prior to the Closing Date, except as set forth or contemplated in the
Final Prospectus, (i) neither the Company nor any of its consolidated
subsidiaries has entered into any transaction not in the ordinary
course of business that is material to the Company and its consolidated
subsidiaries, considered as a whole, (ii) there has been no material
adverse change in the properties, business, financial condition or
results of operations of the Company and its consolidated subsidiaries,
considered as a whole, and (iii) no legal or governmental proceeding
that has materially affected the Company or any of its consolidated
subsidiaries, considered as a whole, or the transactions contemplated
by this Agreement, has been or will have been instituted or threatened.
(e) The Company and each of its consolidated subsidiaries has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
corporate power and authority to own or lease its properties and
conduct its business as currently conducted. The Company each of its
consolidated subsidiaries is duly qualified as a foreign corporation
and is in good standing in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, other than those jurisdictions as to which the failure
to be so qualified or in good standing would not, individually or in
the aggregate, reasonably be expected to have a material adverse effect
on the financial condition of the Company and its consolidated
subsidiaries considered as a whole ("Material Adverse Effect").
3
<PAGE> 4
(f) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof will not result in a breach of
any of the terms and provisions of, or constitute a default under, (i)
the Restated Certificate of Incorporation or By-Laws of the Company as
presently in effect, (ii) any material indenture, mortgage contract or
other agreement to which the Company or any of its consolidated
subsidiaries is a party or (iii) any rule, order statute, law or
regulation applicable to the Company or any of its consolidated
subsidiaries, except, with respect to clauses (ii) and (iii) for
breaches and defaults that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(g) The Securities have been duly and validly authorized and,
when issued, authenticated and delivered against payment therefor in
accordance with the terms of the Indenture and this Agreement, will
constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency, moratorium
and other laws affecting the enforceability of creditors' rights and
general principles of equity, and will conform to the description
thereof contained in the Final Prospectus. The Indenture has been duly
authorized, executed and delivered by the Company and is be a valid and
binding agreement, enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of equity.
The Indenture is duly qualified under the Trust Indenture Act and
conforms to the description thereof contained in the Final Prospectus.
(h) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Securities, except such as may be required under the Securities
Act or under state securities or blue sky laws.
(i) This Agreement has been duly authorized, validly executed
and delivered by the Company.
(j) The Company and its consolidated subsidiaries possess
adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificates,
authorities or permits that, if determined adversely to the Company or
such subsidiaries, individually or in the aggregate, would have a
Material Adverse Effect.
(k) Except as disclosed in the Registration Statement and the
Final Prospectus, neither the Company nor any of its consolidated
subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human
4
<PAGE> 5
exposure to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws,
or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim, individually or in the
aggregate, would have a Material Adverse Effect.
(l) Except as disclosed in the Registration Statement and the
Final Prospectus, there are no pending actions, suits or proceedings
against or affecting the Company, any of its consolidated subsidiaries
or any of their respective properties that, if determined adversely to
the Company or such subsidiaries, individually or in the aggregate,
would have a Material Adverse Effect, or would have a material adverse
effect on the ability of the Company to perform its obligations under
this Agreement.
(m) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(n) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder, any further Incorporated Documents so filed
will, when they are filed, conform in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder; no such document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was
filed), contained an 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 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; and no such
further document, when it is filed, will contain an untrue statement of
a material fact or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading.
(o) Except as otherwise set forth in the Registration
Statement and the Final Prospectus, all of the outstanding shares of
capital stock of, or other ownership interests in, each of the
Company's consolidated subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by
the Company, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature, except for instances
that, individually and in the aggregate, do not have a Material Adverse
Effect.
(p) Neither the Company nor any of its consolidated
subsidiaries is in violation of its respective charter or by-laws or in
default in the performance of any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence
of material indebtedness or in any other agreement, indenture or
5
<PAGE> 6
instrument material to the conduct of the business of the Company and
its consolidated subsidiaries, taken as a whole, to which the Company
or any of its consolidated subsidiaries is a party or by which it or
any of its consolidated subsidiaries or their respective property is
bound, other than violations and defaults that do not have a Material
Adverse Effect.
3. SALE, PURCHASE AND DELIVERY OF SECURITIES. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriters,
severally and not jointly, and each Underwriter, severally and not jointly
(unless otherwise indicated on Schedule I), agrees to purchase from the Company,
at the purchase price set forth in Schedule I, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II, except
that, if Schedule I provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II, less the
respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule I, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III, but with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I of the principal amount of the Securities for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. The
Company will make Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such Delayed
Delivery Contract must be for not less than the minimum principal amount set
forth in Schedule I and the aggregate principal amount of Contract Securities
may not exceed the maximum aggregate principal amount set forth in Schedule I.
The Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Securities to
be purchased by each Underwriter as set forth in Schedule II shall be reduced by
an amount which bears the same proportion to the total principal amount of
Contract Securities as the principal amount of Securities set forth opposite the
name of such Underwriter bears to the aggregate principal amount set forth in
Schedule II, except to the extent that you determine that such reduction shall
be otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be purchased
by all Underwriters shall be the aggregate principal amount set forth in
Schedule II, less the aggregate principal amount of Contract Securities.
6
<PAGE> 7
Delivery of and payment for the Underwriters' Securities will be made
at the office, on the date and at the time specified in Schedule I, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 (such date and time of delivery and payment
for the Underwriters' Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company in Federal (same day) funds, or, if so
indicated on Schedule I , in New York Clearinghouse (same day) funds.
Certificates for the Underwriters' Securities shall be registered in such names
and in such denominations as the Representatives may request not less than two
full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 PM on the business day prior to the Closing Date.
If so provided in Schedule I, Underwriters' Securities will be
represented by one or more definitive global Securities in book-entry form that
will be deposited by or on behalf of the Company with DTC or DTC's designated
custodian. In such case, (a) delivery of the Underwriters' Securities will be
made to the Representatives for the respective accounts of the several
Underwriters by causing DTC to credit the Underwriters' Securities to the
account of the Representatives at DTC, and (b) the Company will cause the
certificates representing the Underwriters' Securities to be made available to
the Representatives for inspection not later than 1:00 p.m., New York City time,
on the business day prior to the Closing Date at the office of DTC or its
designated custodian.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing, and the Company will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be
timely filed with the Commission pursuant to Rule 424 or Rule 434 under
the Securities Act. The Company will promptly advise the
Representatives (i) when the Final Prospectus has been filed with the
Commission pursuant to Rule 424 or Rule 434 under the Securities Act,
(ii) when any amendment to the Registration Statement relating to the
Securities has become effective, (iii) of any request by the Commission
for any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement use of the Final Prospectus
or the institution or threatening of any proceeding for such purpose
and (v) of the receipt by the Company of any notification relating to
the suspension of the qualification of the Securities for sale in any
7
<PAGE> 8
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) The Company will prepare and file with the Commission,
promptly upon the request of the Representatives, any amendments or
supplements to the Registration Statement or Final Prospectus that, in
the opinion of counsel for the Underwriters, may be necessary to enable
the several Underwriters to continue the sale of the Securities, and
the Company will use its best efforts to cause any such amendments to
become effective and any such supplements to be filed with the
Commission and approved for use by the Underwriters as promptly as
possible. If at any time when a prospectus relating to the Securities
is required to be delivered under the Securities Act, any event
relating to or affecting the Company occurs as a result of which the
Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any material fact
necessary to make the statement therein not misleading, or if it is
necessary at any time to amend or supplement the Final Prospectus to
comply with the Securities Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement that will correct such statement
or omission or that will effect such compliance. For purposes of this
paragraph (b), the Company will furnish such information with respect
to itself as the Representatives may from time to time reasonably
request.
(c) As soon as practicable, but not later than 90 days after
the end of the 12-month period beginning at the end of the current
fiscal quarter of the Company, the Company will make generally
available to its security holders and you an earnings statement
covering a period of at least twelve months beginning not earlier than
said effective date that shall satisfy the provisions of Section 11(a)
of the Securities Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference therein) and each amendment thereto that
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Securities Act, as many copies of any Preliminary Final Prospectus
and the Final Prospectus and any amendments thereof and supplements
thereto as the Representatives may reasonably request. The Company will
pay the expenses of printing all documents relating to the offering.
(e) The Company will furnish such information and execute such
instruments as may be required to qualify the Securities for sale under
the securities or blue sky laws of such jurisdictions within the United
States as you designate, will continue such qualifications in effect so
long as required for distribution and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors. The Company shall not be required to register
or qualify as a foreign corporation or, except as
8
<PAGE> 9
to matters and transactions relating to the offer and sale of the
Securities, consent to service of process in any jurisdiction.
(f) The Company will pay all costs and expenses in connection
with the transactions herein contemplated, including the fees and
disbursements of its counsel; the fees, costs and expenses of
preparing, printing and delivering the Indenture and the Securities;
the fees, costs and expenses of the Trustee; accounting fees and
disbursements; the costs and expenses in connection with the
qualification or exemption of the Securities under state securities or
blue sky laws, including filing fees and reasonable fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with any Blue Sky Memoranda; the costs and expenses
in connection with the preparation, printing and filing of the
Registration Statement (including exhibits thereto) and the Basic,
Preliminary Final and Final Prospectus, the preparation and copying of
this Agreement and the furnishing to the Underwriters of such copies of
each prospectus as the Underwriters may reasonably require; and the
fees of rating agencies. It is understood, however, that, except as
provided in this Section and in Sections 7 and 8, the Underwriters will
pay all of their own costs and expenses, including the fees of their
counsel and any advertising expenses connected with any offers they may
make.
(g) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed under
the Securities Act.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Securities
are subject to the condition that the representations and warranties on the part
of the Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date are true and correct in all material
respects, to the accuracy of the written statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder to be performed on or prior to the Closing Date and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or shall be pending, or, to the knowledge of the Company, shall be
contemplated by the Commission.
(b) No event, nor any material adverse change in the Company's
condition (financial or otherwise) or results of operations shall have
occurred, nor shall any event exist, that makes untrue or incorrect any
material statement or information contained in the Registration
Statement or the Final Prospectus or that is not reflected in the
9
<PAGE> 10
Registration Statement or the Final Prospectus, but should be reflected
therein in order to make the statements or information contained
therein not misleading.
(c) You shall have received at the Closing Date (or prior
thereto as indicated) the following:
(i) An opinion from Stewart S. Hudnut, Senior Vice
President, General Counsel and Secretary, or an Associate
General Counsel of the Company, dated the Closing Date, to the
effect that:
(a) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Delaware with
corporate power and authority to own or lease its
properties and conduct its business as described in
the Final Prospectus.
(b) The Indenture has been duly authorized,
executed and delivered by the Company and the
Trustee, is duly qualified under the Trust Indenture
Act, and is a valid and legally binding obligation of
the Company enforceable in accordance with its terms,
except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, moratorium and
other laws affecting the enforceability of creditors'
rights and general principles of equity.
(c) The Securities have been duly and
validly authorized by all necessary corporate action
and, when duly executed on behalf of the Company,
authenticated by the Trustee or the Trustee's
authenticating agent, and delivered to the several
Underwriters against payment therefor in accordance
with the provisions of this Agreement, in the case of
the Underwriters' Securities, or to the purchasers
thereof pursuant to Delayed Delivery Contracts, in
the case of Contract Securities, will constitute
legal, valid and binding obligations of the Company
enforceable in accordance with their terms and
entitled to all the benefits of the Indenture, except
as enforcement thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws
affecting the enforceability of creditors' rights and
general principles of equity.
(d) The Indenture and the Securities conform
to the descriptions thereof in the Final Prospectus,
and the statements concerning them accurately set
forth the provisions thereof required to be set forth
in the Final Prospectus.
(e) This Agreement and any Delayed Delivery
Contracts have been validly authorized, executed and
delivered on behalf of the Company.
(f) The Registration Statement and any
amendments thereto have become effective under the
Securities Act, and, to the best of the
10
<PAGE> 11
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement, as
amended, has been issued and no proceedings for that
purpose have been instituted or are pending or
contemplated under the Securities Act, and (1) the
Registration Statement, the Final Prospectus, and
each amendment thereof or supplement thereto (except
for the financial statements and other financial data
included therein, as to which such counsel need
express no opinion) comply as to form in all material
respects with the requirements of the Securities Act
and the Exchange Act and the respective rules
thereunder; (2) such counsel has no reason to believe
that, as of its effective date, the Registration
Statement or any such amendment (except for the
financial statements and other financial data
included therein, as to which such counsel need
express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading or that the
Final Prospectus as amended or supplemented as of its
issued date (except for the financial statements and
other financial data included therein, as to which
such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading or that, as of the Closing Date, either
the Registration Statement or the Final Prospectus as
amended or supplemented (except for the financial
statements and other financial data included therein,
as to which such counsel need express no opinion)
contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in light of the circumstances
under which they were made, not misleading; (3) the
descriptions in the Registration Statement and Final
Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are
accurate and fairly present the information required
to be shown; and (4) such counsel does not know of
any legal or governmental proceedings required to be
described in the Final Prospectus that are not
described as required, or of any contracts or
documents of a character required to be described in
the Registration Statement or Final Prospectus or to
be filed as exhibits to the Registration Statement
that are not described and filed as required.
(g) The consummation of the transactions
herein contemplated and the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will not
result in a breach of any of the terms and provisions
of, or constitute a default under, any material
indenture, mortgage, deed of trust or other agreement
or instrument to which, to the knowledge of such
counsel, the Company is a party, or the Restated
Certificate of Incorporation or By-Laws of the
Company as presently in effect or, to the knowledge
of such counsel, any order, rule or regulation
applicable to the Company of any court or of any
federal or state regulatory body or
11
<PAGE> 12
administrative agency or other governmental body
having jurisdiction over the Company or its
properties.
(h) No authorization, approval, consent,
order, filing or other action of any governmental
authority or agency is required in connection with
the sale of the Securities as contemplated by this
Agreement or in any Delayed Delivery Contracts except
such as may be required under the Securities Act or
under state securities or blue sky laws.
With respect to the matters set forth in paragraph (f)(2),
such counsel may state that his belief is based upon his
participation in the preparation of the Registration Statement
and the Final Prospectus and any amendments and supplements
thereto and upon review and discussion of the contents
thereof, but, except for the statements in the Registration
Statement and the Final Prospectus referred to in paragraph
(f)(3), is without independent check or verification except as
otherwise specified.
(ii) An opinion of Gardner, Carton & Douglas, counsel
for the Company, dated the Closing Date, covering the matters
in paragraphs (b), (c), (d), (e), (f)(1), (f)(2), (f)(3)
(other than as to legal and governmental proceedings and
contracts and other documents), (g) and (h), provided that as
to the matters set forth in paragraph (f)(2) of Section 5(c)
(i), such counsel may state that their belief is based upon
their participation in the preparation of the Registration
Statement and the Final Prospectus and any amendments and
supplements thereto (but not the documents incorporated by
reference therein) and upon review and discussion of the
contents thereof (including the documents incorporated by
reference therein), but, except for the statements in the
Registration Statement and the Final Prospectus referred to in
paragraph (f)(3) (but only as to statutes), is without
independent check or verification except as otherwise
specified.
(iii) Such opinion or opinions of counsel for the
Underwriters, dated the Closing Date, as to the sufficiency of
all corporate proceedings and other legal matters relating to
this Agreement, any Delayed Delivery Contracts, the validity
of the Securities, the Registration Statement, the Final
Prospectus and other related matters as you may reasonably
request. The Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of
opinions. In connection with such opinions, such counsel may
rely on representations or certificates of officers of the
Company.
(iv) A certificate of the President or a Vice
President, and the Chief Financial Officer of the Company or
its Treasurer, dated the Closing Date, to the effect that:
(a) The representations and warranties of
the Company in Section 2 of this Agreement are true
and correct as of the Closing Date,
12
<PAGE> 13
and the Company has complied with all the agreements
and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing
Date.
(b) No stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the
respective signers of the certificate, are
contemplated under the Securities Act.
(c) The signers of the certificate have
carefully examined the Registration Statement and the
Final Prospectus; neither the Registration Statement,
the Final Prospectus nor any amendment or supplement
thereto includes, as of the Closing Date, any untrue
statement of a material fact or omits, as of the
Closing Date, to state any material fact required to
be stated therein or necessary to make the statements
therein not misleading; since the latest respective
dates as of which information is given in the
Registration Statement, there has been no material
adverse change in the condition (financial or
otherwise), business or results of operations of the
Company and its consolidated subsidiaries, considered
as a whole, except as set forth in or contemplated by
the Final Prospectus; and since the effective date of
the Registration Statement, as amended, no event has
occurred which is required to be set forth in the
Final Prospectus which has not been so set forth.
(v) Letters from Arthur Andersen LLP, dated the date
hereof (and delivered prior to the execution and delivery of
this Agreement) and the Closing Date, addressed to you
substantially in the form heretofore approved by you.
(d) Prior to the Closing Date, the Company shall have
furnished to you such further certificates and documents as you may
reasonably request.
(e) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any condition of the Underwriters' obligations required to be satisfied prior
to the Closing Date is not so satisfied, this Agreement may be terminated by you
by notice in writing or by facsimile transmission to the Company.
In rendering the opinions described in Sections 5(d)(i), (ii) and (iii), counsel
for the Company, and counsel for the Underwriters may, as to matters involving
the laws of any state other than Illinois, rely upon the opinion or opinions of
local counsel satisfactory to you, but in such case a signed copy of each such
opinion shall be furnished to you.
13
<PAGE> 14
All such opinions (including opinions, if any, of local counsel), certificates,
letters and documents will be in compliance with the provisions hereof only if
they are in all material respects satisfactory to you and to counsel for the
Underwriters, as to which both you and such counsel shall act reasonably. The
Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you request.
You, on behalf of the Underwriters, may waive in writing the compliance by the
Company with any one or more of the foregoing conditions or extend the time for
their performance.
6. TERMINATION OF AGREEMENT. This Agreement may be terminated by you on
behalf of the Underwriters by notice in writing delivered to the Company prior
to the Closing Date if prior to such time (i) trading in the Company's common
stock shall have been suspended by the Commission on the New York Stock Exchange
or trading in securities generally on the New York Stock Exchange shall have
been suspended or materially limited, in either case to such a degree as would
in your judgment materially adversely affect the market for the Securities; (ii)
a general moratorium on commercial banking activities in the State of New York
or the United States shall have been declared by Federal authorities; or (iii)
there has occurred any material outbreak, or material escalation, of hostilities
involving the United States or other national or international calamity or
crisis, of such magnitude and severity in its effect on the financial markets of
the United States, in your reasonable judgment, as to prevent or materially
impair the marketing, or enforcement of contracts for sale, of the Securities.
If this Agreement is terminated by you because of any failure on the part of the
Company to comply with any of the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company is unable to perform its
obligations under this Agreement, the Company shall pay, in addition to the
costs and expenses referred to in Section 4(g), all reasonable out-of-pocket
expenses incurred by the Underwriters in contemplation of the performance by
them of their obligations hereunder, including the reasonable fees and
disbursements of counsel for the Underwriters, the Underwriters' reasonable
printing and travel expenses, and postage and telephone charges relating
directly to the offering contemplated by the Final Prospectus, and also
including advertising expenses incurred after the effective date of the
Registration Statement, it being understood that such out-of-pocket expenses
shall not include any compensation, salaries or wages of the officers, partners
or employees of any of the Underwriters.
The Company shall not in any event be liable to the several Underwriters for
damages on account of loss of anticipated profits arising out of the
transactions contemplated by this Agreement.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement or any amendment thereof, the Basic Prospectus, any
Preliminary Final
14
<PAGE> 15
Prospectus or the Final Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use in the preparation thereof; and provided, further, that the
foregoing indemnification with respect to the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities, if
such Underwriter failed to send or give copies of the Final Prospectus, as
amended or supplemented, excluding documents incorporated therein by reference,
to such person at or prior to the written confirmation of the sale of such
Securities to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact contained
in the Basic Prospectus or any Preliminary Final Prospectus was corrected in the
Final Prospectus (or the Final Prospectus as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each person, if any, who controls the Company
either within the meaning of the Securities Act or the Exchange Act,
each of its directors and each of its officers who has signed the
Registration Statement, against any losses, claims, damages or
liabilities to which the Company, any such controlling person or any
such director or officer may become subject, under the Securities Act,
the Exchange Act, or otherwise, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through you specifically
for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the
cover page of the Final Prospectus and under the heading "Underwriting"
or "Plan of Distribution" and, if Schedule I provides for sale of
Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in the Final
Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in the Final
Prospectus, and you confirm that such statements are correct. This
indemnity agreement will be in addition to any liability which each
such Underwriter may otherwise have.
15
<PAGE> 16
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in and, to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or in addition to those
available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt by such
indemnified party of notice from the indemnifying party of its election
so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
such counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives of the Underwriters in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) or (b), as
the case may be, who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; provided, further, that, with
respect to legal and other expenses incurred by an indemnified party
for which an indemnifying party shall be liable hereunder, all such
legal fees and expenses shall be reimbursed by the indemnifying party
as they are incurred.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) of this Section 8 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company on
grounds of policy or otherwise, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such
discount and the
16
<PAGE> 17
purchase price of the Securities set forth in Schedule I and the
Company is responsible for the balance; provided, however, that (i) in
no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter
hereunder and (ii) 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. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of the Securities
Act shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company,
subject in each case to clause (i) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties
from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this paragraph (d).
8. DEFAULT BY AN UNDERWRITER. If the Underwriters' obligations to
purchase Securities pursuant to Section 3 are several and not joint and if any
one or more Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement and unless otherwise provided in
Schedule I, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II bear to the aggregate amount of
Securities set opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II, the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
17
<PAGE> 18
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
indemnities, agreements, representations and warranties of the Company and the
several Underwriters, set forth in or made pursuant to this Agreement, will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any of its officers or directors or
any controlling person, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 shall survive the termination or
cancellation of this Agreement.
10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or sent by facsimile transmission and confirmed to them, at the
address specified in Schedule I ; or, if sent to the Company, will be mailed,
delivered or sent by facsimile transmission and confirmed to the Company at 3600
West Lake Avenue, Glenview, Illinois 60025-5811, Attention: Treasurer.
11. SUCCESSORS; GOVERNING LAW. This Agreement will inure to the benefit
of and be binding upon the parties hereto and the officers and directors and
controlling persons referred to in Section 8 and their respective successors,
assigns, heirs, executors and administrators, and no other persons will have any
right or obligation hereunder. The terms "successors" and "assigns" as used
herein shall not include a purchaser as such from any Underwriter. This
Agreement shall be governed by and construed and enforced in accordance with,
the internal laws of the State of Illinois.
12. BUSINESS DAY. For purposes of this Agreement, "business day" means
any day on which the New York Stock Exchange is open for trading.
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<PAGE> 19
If the foregoing is in accordance with your understanding of our
agreement, sign and return to us the enclosed duplicate hereof, whereupon it
will become a binding agreement between the Company and the several Underwriters
in accordance with its terms.
Very truly yours,
ILLINOIS TOOL WORKS INC.
By:
---------------------------
The foregoing Underwriting Agreement
is confirmed and accepted by us in
Chicago, Illinois, acting on
behalf of ourselves, the other
Representatives (if any), and the
several Underwriters (if any)
named in the annexed Schedule II,
as of the date first above
written.
[NAME OF REPRESENTATIVE]
By:
--------------------------------
Date:
19
<PAGE> 20
SCHEDULE I
UNDERWRITING AGREEMENT DATED
REGISTRATION STATEMENT NO.
REPRESENTATIVES:
TITLE, PURCHASE PRICE AND DESCRIPTION OF SECURITIES:
Title:
Aggregate Principal Amount:
Price to Public:
Purchase Price by Underwriter
(include accrued interest
or amortization if applicable):
Maturity:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
Redemption Provisions:
Sinking Fund Provisions:
Other Provisions:
SALE AND DELIVERY PROVISIONS UNDER SECTION 3:
Obligation to Purchase is: several and not joint [_]
several and not joint;
provided, however that,
notwithstanding the provisions
of Section 9 of the
Underwriting Agreement, the
Representative(s) listed above
will, subject to the terms and
conditions hereof, purchase or
cause to be
<PAGE> 21
Underwriter or Underwriters
have agreed but failed
purchased any Securities which
any defaulting or refused to
purchase pursuant to Section 3
hereof [_]
joint and several [_]
Payment to Be Made in: New York Clearinghouse (same day)
funds [_] or Federal (same day)
funds [_]
Delivery of Securities: Physical delivery to Underwriters
through Representatives [_]
or delivery to Underwriters
through facilities of DTC by
delivery to DTC of one or more
definitive global securities in
book-entry form [_]
CLOSING DATE, TIME AND LOCATION:
[Delayed Delivery Arrangements:
Payment to Be Made in: New York Clearinghouse (same day)
funds [_] or Federal (same day)
funds [_]
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:]
ADDRESS FOR NOTICE TO REPRESENTATIVES:
2
<PAGE> 22
SCHEDULE II
UNDERWRITERS PRINCIPAL AMOUNT
- ------------ ----------------
$
---------------
Total $
===============
<PAGE> 23
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 19
[Insert name and address of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Illinois Tool Works Inc.
(the "Company"), and the Company agrees to sell to the undersigned, on [ ],
19 , (the "Delivery Date"), $[ ] principal amount of the Company's [ ]
(the "Securities") offered by the Company's Final Prospectus dated [ ], 19 ,
receipt of a copy of which is acknowledged, at a purchase price of [ ]% of the
principal amount thereof, plus accrued interest, if any, thereon from [ ], 19 ,
to the date of payment and delivery, and on the further terms and conditions set
forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM on the Delivery Date to or upon the order of the
Company in New York Clearinghouse (same day) funds or Federal (same day) funds,
as specified in Schedule I to the Underwriting Agreement referred to in the
Final Prospectus mentioned above, at your office or at such other place as shall
be agreed between the Company and the undersigned upon delivery to the
undersigned of the Securities in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned may
request by written communication addressed to the Company not less than five
full business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (i) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (ii) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Final Prospectus mentioned above.
Promptly after completion of such sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected
22
<PAGE> 24
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed and enforced in
accordance with, the internal laws of the State of Illinois.
Very truly yours,
(Name of Purchaser)
By
-----------------------------------
(Signature and Title of Officer)
(Address)
Accepted:
ILLINOIS TOOL WORKS INC.
By
-------------------------------
(Authorized Signature)
2
<PAGE> 1
EXHIBIT 3.2
BY-LAWS
OF
ILLINOIS TOOL WORKS INC.
Adopted May 5, 1986
Amended:
August 8, October 17, 1986
August 14, 1987
February 19, May 2, 1988
May 2, July 27, October 19, 1990
October 16, 1992
May 7, 1993
December 8, 1994
February 17, May 5, August 4, 1995
May 3 and October 25, 1996
May 9, 1997
October 30, 1998 (effective December 11, 1998)
<PAGE> 2
BY-LAWS
OF
ILLINOIS TOOL WORKS INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be in the City
of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The corporation may also have offices in
Chicago, Illinois, and offices at such other places as the Board of Directors or
officers may from time to time determine.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders shall
be in the month of April or May of each year. The place, date and time of the
meeting shall be fixed by the Board of Directors and stated in the notice of the
meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders may be
called by the chairman or by a majority of the Board of Directors.
SECTION 3. PLACE OF MEETING. The Board of Directors may designate any
place, either within or without Delaware, as the place of meeting for any
meeting of the stockholders (annual or special) called by the Board of
Directors. If a special meeting is otherwise called, the place of meeting shall
be in Chicago, Illinois as designated in the notice.
SECTION 4. NOTICE OF MEETINGS. Written or printed notice stating the
place, day and hour of the meeting shall be delivered either personally or by
mail, by or at the direction of the chairman or persons calling the meeting to
each stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mails
in a sealed envelope addressed to the stockholder at his address as it appears
on the records of the corporation, with postage thereon prepaid.
SECTION 5. VOTING OF SHARES BY CERTAIN HOLDERS. Shares of stock standing
in the name of another corporation, domestic or foreign, may be voted by such
officer, agent or proxy as the by-laws of such corporation may prescribe, or, in
the absence of such provision, as the Board of Directors of such corporation may
determine.
<PAGE> 3
Shares of stock standing in the name of a deceased person may be voted by
his administrator or executor, either in person or by proxy. Persons holding
stock in a fiduciary capacity shall be entitled to vote the shares so held.
Persons whose stock is pledged shall be entitled to vote, unless in the transfer
by the pledgor on the books of the corporation he has expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his proxy, may
represent such stock and vote thereon.
Shares of stock standing in the name of a receiver may be voted by such
receiver, and shares of stock held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if authority
so to do be contained in an appropriate order of the court by which such
receiver was appointed.
SECTION 6. FIXING OF RECORD DATE. Unless any statute requires otherwise,
for the purpose of determining (a) stockholders entitled to notice of or to vote
at any meeting of stockholders, or (b) stockholders entitled to receive payment
of any dividend, or (c) stockholders, with respect to any lawful action, the
Board of Directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case to be not more than sixty
days and, in case of a meeting of stockholders, not less than ten days. If no
record date is fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; (2) the record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 7. QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute, by the
Certificate of Incorporation or by these by-laws. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time until a quorum
shall be present or represented. No notice other than an announcement at the
meeting need be given unless the adjournment is for more than thirty days or a
new record date is to be fixed for the adjourned meeting. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which by express provision of the statutes or of the Certificate of
Incorporation or of these by-laws, a different vote is required in which case
such express provision shall govern and control the decision of such question.
<PAGE> 4
SECTION 8. PROXIES. At all meetings of stockholders, a stockholder may
vote by proxy executed in writing by the stockholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary of the
corporation before or at the time of the meeting. Proxies shall be valid only
with respect to the meeting or meetings and any adjournment thereof, for which
they are given.
SECTION 9. VOTING. Each stockholder shall have one vote in person or by
proxy for each share of stock having voting power registered in his name on the
books of the corporation at the record date.
SECTION 10. STOCKHOLDER NOMINATIONS FOR DIRECTORS. Any stockholder
entitled to vote in the election of directors may nominate one or more persons
for election as directors, provided written notice of such stockholder's
nomination has been received by the Secretary of the Company not later than (i)
the close of business on the last business day of December prior to the annual
meeting of stockholders in April or May, or (ii) the close of business on the
tenth day following the date on which notice of a special meeting of
stockholders is first given to stockholders for an election of directors to be
held at such meeting.
Such notice must contain: (a) the name and address of the stockholder who
intends to make the nomination; (b) the name, age, and business and residential
addresses of each person to be nominated; (c) the principal occupation or
employment of each nominee; (d) the number of shares of capital stock of the
corporation beneficially owned by each nominee; (e) a statement that the nominee
is willing to be nominated and serve as a director; and (f) such other
information regarding each nominee as would be required to be included in a
proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had the Board of Directors nominated such nominee.
Nothing in this Section shall preclude the Board of Directors or the
Nominating Committee either from making nominations for the election of
directors or from excluding the person nominated by a stockholder from the slate
of directors presented to the meeting.
SECTION 11. ELECTION OF DIRECTORS. Directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy
at a meeting of stockholders and entitled to voted on the election of directors.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its Board of Directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of Directors of
the corporation is established at eleven. Each Director shall hold office for
the term for which such
<PAGE> 5
Director is elected or until a successor shall have been chosen and shall have
qualified or until such Director's earlier death, resignation, retirement,
disqualification or removal.
SECTION 3. REGULAR MEETING. A regular meeting of the Board of Directors
shall be held without other notice than this by-law, immediately after, and at
the same place as, the annual meeting of stockholders. The Board of Directors
may provide, by resolution, the time and place, either within or without
Delaware, for the holding of additional regular meetings without other notice
than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the chairman or any two directors. The
person or persons authorized to call special meetings of the Board of Directors
may fix any place, either within or without Delaware, as the place for holding
any special meeting of the Board of Directors called by them.
SECTION 5. NOTICE. Notice of any special meeting shall be given at least
two days previously thereto by written notice delivered personally, by mail or
telegram, to each Director at his business address or at such other address as
he shall have previously requested in writing. If mailed, such notice shall be
deemed to be delivered two days after being deposited in the United States mails
in a sealed envelope so addressed, with postage thereon prepaid. If notice is
given by telegram, such notice shall be deemed to be delivered when the telegram
is delivered to the telegraph company. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting, unless
otherwise required by law.
SECTION 6. QUORUM. A majority of the Board of Directors shall constitute
a quorum for the transaction of business at any meeting of the Board of
Directors, provided that if less than a majority of the Directors are present at
said meeting, a majority of the Directors present may adjourn the meeting from
time to time without further notice. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors unless a greater number is required by the Certificate of
Incorporation or these by-laws.
SECTION 7. INTERESTED DIRECTORS. Except as may otherwise be provided in
the Certificate of Incorporation, no contract or transaction between the
corporation and one or more of its Directors or officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one or more of its Directors or officers are Directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are counted
for such purpose, if:
(a) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative
<PAGE> 6
votes of a majority of the disinterested Directors, even though the
disinterested Directors be less than a quorum; or
(b) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by the vote of the stockholders; or
(c) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
SECTION 8. VACANCIES. If vacancies occur in the Board of Directors
caused by death, resignation, retirement, disqualification or removal from
office of any Director or Directors or otherwise, or if any new Directorship is
created by any increase in the authorized number of Directors, a majority of the
Directors then in office, though less than a quorum, may choose a successor or
successors, or fill the newly created Directorship and the Directors so chosen
shall hold office until the next annual election of Directors and until their
successors shall be duly elected and qualified, unless sooner displaced.
SECTION 9. COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the Directors of the corporation.
(a) The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified
member, at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation
or a revocation of a dissolution, or amending the by-laws of the
corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power
or authority to declare a dividend or to authorize the issuance of stock.
Such committee or committees shall have such name or
<PAGE> 7
names as may be determined from time to time by resolution adopted by the
Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
(b) EXECUTIVE COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate two or more
Directors to constitute an Executive Committee and one or more Directors
as alternates thereof. Subject to the limitations provided in these
by-laws and such further limitation as might be required by law or by the
Certificate of Incorporation or by further resolution of the Board of
Directors, the Executive Committee may, during intervals between meetings
of the Board of Directors, exercise the powers of the Board of Directors
in the management of the business and affairs of the corporation
(including the corporation's dealings with its foreign subsidiaries,
affiliates, and licensees) and may authorize the seal of the corporation
to be affixed to all papers which may require it. The Committee shall not
be empowered to take action with respect to: issuing bonds, debentures;
increasing or reducing the capital of the corporation; authorizing
commitments and expenditures in excess of the total amount or amounts
provided in the capital budgets approved or otherwise authorized by the
Board of Directors; borrowing of monies, except within limits expressly
approved by the Board of Directors; electing officers; fixing the
compensation of officers; establishment of stock option plans, profit
sharing or similar types of compensation plans, filling vacancies or
newly-created directorships on the Board of Directors; removing officers
or directors of the corporation; dissolution, or any other action
specifically reserved to the Board of Directors including all matters
requiring the approval of stockholders. The Committee may also from time
to time formulate and recommend to the Board for approval general policies
regarding management of the business and affairs of the corporation. The
designation of the Committee and the delegation thereto of authority shall
not operate to relieve the Board of Directors or any member thereof of any
responsibility imposed upon it or him by operation of law. The secretary
of the corporation (or in his absence a person designated by the Executive
Committee) shall act as secretary at all meetings of the Executive
Committee. A majority of the Committee, from time to time, shall
constitute a quorum for the transaction of business and the act of a
majority of the Directors present at a meeting in which a quorum is
present shall be the act of the Committee, provided that in the absence or
disqualification of any member of the Committee, the member or members
thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absent or disqualified member. Regular meetings of the Committee may
be held without notice at such times and at such places as shall be fixed
by resolution adopted by a majority of the Committee. Special meetings
may be called by any member of the Committee on twenty-four hours' prior
written or telegraphic notice.
(c) COMPENSATION COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate not less than two
Directors to constitute a Compensation Committee and one or more directors
as alternate members thereof, none of whom shall be employees of the
corporation. In the absence or disqualification of any
<PAGE> 8
member of the Committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member, provided that the majority of the Committee, as then
constituted, shall not be employees of the corporation. The Compensation
Committee shall review and determine from time to time the salaries and
other compensation of all elected officers of the corporation and shall
submit to the Board of Directors such reports in such form and at such
time as the Board of Directors may request. The Compensation Committee
shall also submit recommendations from time to time to the Board of
Directors as to the granting of stock options.
(d) AUDIT COMMITTEE. The Board of Directors, by resolution adopted
by a majority of the whole Board, may designate two or more Directors who
are not employees of the corporation to constitute an Audit Committee and
one or more Directors who are not employees of the corporation as
alternate members thereof, which Committee shall review the selection and
qualifications of the independent public accountants employed from time to
time to audit the financial statements of the corporation and the scope
and adequacy of their audits. The Committee shall also consider
recommendations made by such independent public accountants. The
Committee may also make such review of the internal financial audits of
the corporation as it considers desirable and shall report to the Board
any additions or changes which it deems advisable. In the absence or
disqualification of any member of the Committee, the member or members
thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors who is not an employee of the corporation
to act at the meeting in the place of any such absent or disqualified
member.
(e) EMPLOYEE BENEFITS COMMITTEE. The Board of Directors, by
resolution adopted by a majority of the whole Board, may designate three
(3) or more individuals, any or all of whom may be non-director employees
of the Company, to constitute an Employee Benefits Committee. The
Committee shall select, retain or remove the investment managers,
advisors, consultants and persons otherwise employed by the Company as
named fiduciaries under the Company's employee benefit plans, which
actions it shall report to the Board of Directors. The Committee shall
review the performance of the trustee or trustees, investment managers,
advisors and consultants under said plans with respect to the investment
of plan assets. The Committee shall be responsible for the administration
of the Company's employee benefit plans and, in fulfilling that
responsibility, may delegate to others, whether Company employees or
otherwise, specific assignments in administering the plans.
(f) CORPORATE GOVERNANCE AND NOMINATING COMMITTEE, The Board of
Directors, by resolution adopted by a majority vote of the whole Board,
may designate two or more Directors to constitute a Corporate Governance
and Nominating Committee. This Committee shall recommend criteria for
Board membership, establish procedures for the receipt and evaluation of
suggestions of candidates, and make recommendations to the Board
concerning nominees for Board membership. The Committee may recommend
<PAGE> 9
to the Board policies and procedures relating to corporate governance and
monitor such policies and procedures when established. The Committee may
also make recommendations to the Board concerning the number of Directors
to serve on the Board and may establish standards for evaluation of the
performance of the Directors in order to make recommendations with regard
thereto.
(g) FINANCE COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate two or more
directors to constitute a Finance Committee and one or more directors as
alternate members thereof. The duties and responsibilities of the Finance
Committee shall be to review, upon the request of the Chairman or the
President, management's proposals with respect to: the corporation's debt
and equity financing; recommendations to the Board with respect to
dividend policy and payments; acquisitions and divestitures exceeding the
standing authority management has by virtue of the resolution dated
December 10, 1993, or its successors; recommendations to the Board
concerning the corporation's investment portfolio; the corporation's real
estate investments; and other financing and investment matters.
SECTION 10. CONSENT IN LIEU OF MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the Board of Directors or any committee
thereof may be taken without a meeting if all members of the Board or committee
thereof, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board or
committee.
SECTION 11. COMPENSATION. Directors who are also full time employees of
the corporation shall not receive any compensation for their services as
Directors but they may be reimbursed for reasonable expenses of attendance. By
resolution of the Board of Directors, all other Directors may receive, as
compensation for their services any combination of: an annual fee; a fee for
each meeting attended; shares of stock; or other forms of compensation; together
with reimbursement of expenses of attendance, if any, at each regular or special
meeting of the Board of Directors or any committee of the Board of Directors;
provided, that nothing herein contained shall be construed to preclude any
Director from serving the corporation in any other capacity and receiving
compensation therefor.
SECTION 12. MEETING BY CONFERENCE TELEPHONE. Unless otherwise restricted
by the Certificate of Incorporation, members of the Board of Directors or any
committee designated by such Board may participate in a meeting of such Board or
committee by means of conference telephone or similar communication equipment by
means of which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant hereto shall constitute presence in person
at such meeting. Unless otherwise required by law, no notice shall be required
if a quorum of the Board or any committee is participating.
<PAGE> 10
ARTICLE IV
OFFICERS
SECTION 1. NUMBER. The officers of the corporation shall be a chairman,
vice chairman, chairman of the Executive Committee, one or several executive
vice presidents or vice presidents (the number thereof to be determined by the
Board of Directors), one or several of the vice presidents may be designated
"senior vice president" by the Board of Directors, and one of whom may be
elected as chief financial officer of the corporation, a treasurer, a
controller, a secretary, and other such officers as may be elected in accordance
with the provisions of this article. Any two or more offices may be held by the
same person.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected annually by the Board of Directors at the first meeting of the
Board of Directors held after each annual meeting of stockholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices created and filled at any meeting of the Board of Directors. Each
officer shall hold office until his successor shall have been duly elected and
shall have qualified or until his death or until he shall resign or shall have
been removed in the manner hereinafter provided.
SECTION 3. REMOVAL. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
SECTION 5. CHAIRMAN. The chairman shall be the chief executive officer
of the corporation and shall have general supervision over all of the affairs of
the corporation and shall determine and administer the policies of the
corporation as established by the Board of Directors or by the Executive
Committee. The chairman shall: (i) provide leadership to the Board in
reviewing and advising upon matters which exert major influence on the manner in
which the corporation's business is conducted; (ii) preside at all meetings of
the stockholders and of the Board of Directors; (iii) in the absence of the
chairman of the Executive Committee, preside at all meetings of the Executive
Committee; and (iv) perform such other duties as may be conferred by law or
assigned by the Board of Directors. The chairman may sign, with the secretary
or other proper officer of the corporation thereunto authorized by the Board of
Directors, stock certificates of the corporation, any deeds, mortgages, bonds,
contracts, or other instruments, except in cases where the signing or execution
thereof shall be expressly delegated by the Board of Directors or by these
by-laws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed. The chairman may also execute
proxies on behalf of the corporation with respect to the voting of any shares of
stock owned by the corporation; have the power to appoint agents or employees as
in the chairman's judgment may
<PAGE> 11
be necessary or appropriate for the transaction of the business of the
corporation; and in general shall perform all duties incident to the office of
chairman.
SECTION 6. VICE CHAIRMAN. The vice chairman shall assist the chairman in
supervising the affairs of the corporation, with special responsibility for
integrating acquired businesses into the corporation. In the absence of the
chairman, the vice chairman shall preside at all meetings of the stockholders
and the Board of Directors. In the event of the absence or disability of the
chairman, the vice chairman shall assume all of the duties and responsibilities
of that office. The vice chairman may sign any deeds, mortgages, bonds,
contracts or other instruments, except in cases where the signing is required to
be by some other officer or agent of the corporation. The vice chairman shall
perform such other duties as may be designated by the chairman or the Board of
Directors.
SECTION 7. CHAIRMAN OF THE EXECUTIVE COMMITTEE. The chairman of the
Executive Committee shall preside at all meetings of the Executive Committee; in
the absence of the chairman and vice chairman, he shall preside at all meetings
of the stockholders and the Board of Directors; he shall act in an advisory
capacity to the chairman in all matters concerning the interest and management
of the corporation, and he shall perform such other duties as may be assigned to
him by the Board of Directors, the Executive Committee or the chairman. In the
event of the absence or disability of the chairman and vice chairman, he shall
assume all the duties and responsibilities of the office of the chairman. The
chairman of the Executive Committee may sign, with the secretary or other proper
officer of the corporation thereunto authorized by the Board of Directors, stock
certificates of the corporation, any deeds, mortgages, bonds, contracts, or
other instruments delegated by the Board of Directors or by these by-laws to
some other officer or agent of the corporation, or shall be required by law to
be otherwise signed or executed. The chairman of the Executive Committee may
also execute proxies on behalf of the corporation with respect to the voting of
any shares of stock owned by the corporation.
SECTION 8. EXECUTIVE VICE PRESIDENT(S). The executive vice president or
executive vice presidents (if elected by the Board of Directors) shall perform
such duties not inconsistent with these by-laws as may be assigned to him or
them by the chairman or the Board of Directors. In the event of absence or
disability of the chairman, and vice chairman and chairman of the Executive
Committee, the executive vice president (or in the event there be more than one,
the executive vice president determined in the order of election) shall assume
all the duties and responsibilities of the office of the chairman.
<PAGE> 12
SECTION 9. CHIEF FINANCIAL OFFICER. The chief financial officer (if
elected by the Board of Directors) shall have general supervision over the
financial affairs of the corporation.
SECTION 10. THE VICE PRESIDENT(S). The Board of Directors may designate
any vice president as a senior vice president. In the event of absence or
disability of the chairman and vice chairman, the chairman of the Executive
Committee and all executive vice presidents, the senior vice president)) or the
vice president(s) in the order of election, shall assume all the duties and
responsibilities of the office of the chairman. Any senior vice president or
any vice president may sign, with the secretary or an assistant secretary, stock
certificates of the corporation; and shall perform such other duties as from
time to time may be assigned to him by the chairman or by the Board of
Directors. In general, the vice president (or vice presidents, including the
senior vice president or senior vice presidents) shall perform such duties not
inconsistent with these by-laws as may be assigned to him (or them) by the
chairman, the executive vice presidents or by the Board of Directors.
SECTION 11. THE TREASURER. If required by the Board of Directors, the
treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall determine. He
shall: (a) have charge and custody of and be responsible for all funds and
securities of the corporation; receive and give receipts for monies due and
payable to the corporation from any source whatsoever, and deposit all such
monies in the name of the corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of Article
VI of these by-laws; (b) in general perform all duties incident to the office of
treasurer and such other duties not inconsistent with these by-laws as from time
to time may be assigned to him by the Board of Directors, or by the chairman, or
any vice president designated for such purpose by the chairman.
SECTION 12. THE SECRETARY. The secretary shall: (a) keep the minutes of
the stockholders' and the Board of Directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all stock certificates prior to the issue
thereof and to all documents, the execution of which on behalf of the
corporation under its seal is required; (d) keep a register of the post office
address of each stockholder which shall be furnished to the secretary by such
stockholder; (e) sign with a vice president, or the chairman, stock certificates
of the corporation, the issue of which shall have been authorized by resolution
of the Board of Directors; (f) have general charge of the stock transfer books
of the corporation; (g) act as secretary at all meetings of the Executive
Committee; and (h) in general perform all duties incident to the office of
secretary and such other duties not inconsistent with these by-laws as from time
to time may be assigned to him by the chairman or by the Board of Directors.
SECTION 13. THE CONTROLLER. The controller shall provide guidance and
evaluation with respect to the corporation's accounting and related functions,
control and procedures systems, budget programs, and coordinate same on a
divisional and overall corporate level. The controller shall report to such
officer or officers of the corporation and perform such other duties incident to
the office of controller as may be prescribed from time to time by the chairman,
chief financial officer, or by the Board of Directors.
<PAGE> 13
SECTION 14. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The chairman
may appoint one or more assistant treasurers and one or more assistant
secretaries who shall serve as such until removed by the chairman or the Board
of Directors. The assistant treasurers may be required to give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
chairman shall determine. The assistant treasurers and assistant secretaries,
in general, shall perform such duties as shall be assigned to them by the
treasurer or the secretary, respectively, or by the chairman, but shall not be
considered to be officers of the corporation solely by reason of such
appointments or titles.
SECTION 15. APPOINTIVE PRESIDENTS AND VICE PRESIDENTS. The chairman may
from time to time designate employees of the corporation who are managing one or
several groups, divisions, or other operations of the corporation as
"President", "Vice President", or similar title, which employees shall not be
considered to be officers of the corporation solely by reason of such
appointments or titles. The chairman shall report such appointments to the
Compensation Committee at least annually.
SECTION 16. SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors on a monthly basis and no officer shall
be prevented from receiving such salary by reason of the fact that he is also a
Director of the corporation.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS
EMPLOYEES AND AGENTS
SECTION 1. NON-DERIVATIVE ACTIONS AND CRIMINAL PROSECUTIONS. To the
extent permitted by applicable law from time to time in effect, the corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
Director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. DERIVATIVE ACTIONS. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed
<PAGE> 14
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a Director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the corporation unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
SECTION 3. RIGHT TO INDEMNIFICATION. To the extent that a Director,
officer, employee or agent of the corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article, or in defense of any claim, issue or matter
therein, he shall be indemnified by the corporation against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
SECTION 4. WHERE NO ADJUDICATION. Any indemnification under Sections 1
and 2 of this Article (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the Director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
said Sections 1 and 2. Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of Directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable and a quorum of disinterested Directors so
directs, by independent legal counsel (compensated by the corporation) in a
written opinion, or (iii) by the stockholders.
SECTION 5. EXPENSES. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding as authorized by the Board
of Directors in the specific case upon receipt of an undertaking by or on behalf
of the Director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Article.
SECTION 6. NON-EXCLUSIVE. The indemnification provided by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a Director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 7. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee or
agent of the corporation, or is
<PAGE> 15
or was serving at the request of the corporation as a Director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Article or of applicable law.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of any on behalf of the corporation, and such
authority may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositaries as the Board of Directors may
select.
ARTICLE VII
STOCK CERTIFICATES
SECTION 1. STOCK CERTIFICATES. Certificates representing shares of stock
of the corporation shall be in such form as may be determined by the Board of
Directors, shall be numbered and shall be entered in the books of the
corporation as they are issued. They shall exhibit the holder's name and number
of shares and shall be signed by the chairman, the chairman of the Executive
Committee, or a vice president and the treasurer or an assistant treasurer or
the secretary or an assistant secretary, and shall be sealed with the seal of
the corporation. If a stock certificate is countersigned (a) by a transfer
agent other than the corporation or its employee, or (b) by a registrar other
than the corporation or its employee, any other signature on the certificate may
be a facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may
<PAGE> 16
be issued by the corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
SECTION 2. LOST CERTIFICATES. The Board of Directors may from time to
time make such provision as it deems appropriate for the replacement of lost,
stolen or destroyed stock certificates, including the requirement to furnish an
affidavit and an indemnity.
SECTION 3. TRANSFERS OF STOCK. Upon surrender to the corporation or the
transfer agent of the corporation of a stock certificate duly endorsed or
accompanied by proper evidence of succession, assignment of authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon the books of the corporation. The person in whose name shares
of stock stand on the books of the corporation shall be deemed the owner thereof
for all purposes as regards the corporation.
SECTION 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint one or more transfer agents and registrars and may thereafter require
all stock certificates to bear the signature of a transfer agent and registrar.
SECTION 5. RULES OF TRANSFER. The Board of Directors shall have the
power and authority to make all such rules and regulations as they may deem
expedient concerning the issue, transfer and registration of stock certificates
of the corporation.
ARTICLE VIII
FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of January
in each year and end on the thirty-first of December in each year.
ARTICLE IX
DIVIDENDS
The Board of Directors may from time to time, declare, and the corporation
may pay, dividends on its outstanding shares of stock in the manner and upon the
terms and conditions provided by law and its Certificate of Incorporation.
ARTICLE X
SEAL
<PAGE> 17
The Board of Directors shall provide a corporate seal which shall be in the
form of a circle and shall have inscribed thereon the name of the corporation
and the words "Corporate Seal, Delaware".
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the provisions
of these by-laws or under the provisions of the Certificate of Incorporation or
under the provisions of The General Corporation Law of Delaware, waiver thereof
in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Attendance of any person at a meeting for which any
notice whatever is required to be given under the provisions of these by-laws,
the Certificate of Incorporation or The General Corporation Law of Delaware
shall constitute a waiver of notice of such meeting, except when the person
attends for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
<PAGE> 1
EXHIBIT 4.1
================================================================================
ILLINOIS TOOL WORKS INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
--------------
INDENTURE
DATED AS OF NOVEMBER 1, 1986
--------------
================================================================================
<PAGE> 2
ILLINOIS TOOL WORKS INC.
CROSS REFERENCE SHEET*
[This Cross Reference Sheet shows the location in the Indenture of the
provisions inserted pursuant to Sections 310-318(a), inclusive, of the Trust
Indenture Act of 1939.]
<TABLE>
<CAPTION>
SECTION OF
TRUST INDENTURE ACT INDENTURE
<S> <C>
310(a)(1)(2)...................................................... 7.09
(3)....................................................... 7.14
(4)....................................................... Inapplicable
310(b)............................................................ 7.08 and 7.10
(b)(1)(A)(C)................................................. Inapplicable
310(c)............................................................ Inapplicable
311(a)(b)......................................................... 7.13
(c).......................................................... Inapplicable
312(a)............................................................ 5.01 and 5.02
(b)(c)....................................................... 5.02
313(a)(1)(2)(3)(4)(6)(7).......................................... 5.04
(5)....................................................... Inapplicable
(b)(1)....................................................... Inapplicable
(2)....................................................... 5.04
(c)(d)....................................................... 5.04
314(a)............................................................ 5.03
(b).......................................................... Inapplicable
(c)(1)(2).................................................... 14.05
(3)....................................................... Inapplicable
(d).......................................................... Inapplicable
(e).......................................................... 14.05
(f).......................................................... Inapplicable
315(a)(c)(d)...................................................... 7.01
(b).......................................................... 6.07
(e).......................................................... 6.08
316(a)(1)......................................................... 6.06 and 8.04
(2)....................................................... Inapplicable
(b).......................................................... 6.04
317(a)............................................................ 6.02
(b).......................................................... 4.04
318(a)............................................................ 14.08
</TABLE>
- -------------
* The Cross Reference Sheet is not part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
PARTIES...........................................................................................................1
RECITALS:
Purpose of Indenture.........................................................................................1
Compliance with legal requirements...........................................................................1
Purpose of and consideration for Indenture...................................................................1
Article One
Definitions
Section 1.01. Certain Terms Defined............................................................................1
Authorized Newspaper.............................................................................1
Bankruptcy Law...................................................................................2
Board of Directors...............................................................................2
Business Day.....................................................................................2
Certified Board Resolution.......................................................................2
Company..........................................................................................2
Company Direction................................................................................2
Corporate Trust Office...........................................................................2
Custodian........................................................................................3
Dollars and $....................................................................................3
Event of Default.................................................................................3
Government Obligations...........................................................................3
Holder...........................................................................................3
Indenture........................................................................................3
Interest Payment Date............................................................................4
Officers' Certificate............................................................................4
Opinion of Counsel...............................................................................4
Original Issue Discount Security.................................................................4
Outstanding......................................................................................4
Principal Property...............................................................................5
Record Date......................................................................................5
Responsible Officer..............................................................................5
Restricted Subsidiary............................................................................5
Security or Securities...........................................................................6
SEC..............................................................................................6
Sinking Fund.....................................................................................6
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture
<PAGE> 4
ii
<TABLE>
<S> <C>
Stated Maturity....................................................................................6
Subsidiary.........................................................................................6
Trustee............................................................................................6
Trust Indenture Act of 1939 and TLA................................................................7
Section 1.02. Other Definitions..................................................................................7
Section 1.03. Incorporation by Reference of Trust Indenture Act of 1939..........................................7
Article Two
Issue, Description, Execution, Registration, Registration of
Transfer and Exchange of Securities
Section 2.01. Amount Unlimited. Establishment of Series.........................................................8
Section 2.02. Form of Securities and Trustee's Certificate of Authentication.....................................9
Section 2.03. Denomination, Authentication and Dating of Securities.............................................10
Section 2.04. Execution of Securities...........................................................................12
Section 2.05. Registration of Transfer and Exchange.............................................................13
Section 2.06. Temporary Securities..............................................................................14
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities...................................................14
Section 2.08. Cancellation of Surrendered Securities............................................................15
Section 2.09. Provisions of Indenture and Securities for the Sole Benefit of the Parties and the Holders........15
Section 2.10. Computation of Interest...........................................................................15
Section 2.11. Authenticating Agents.............................................................................15
Article Three
Redemption of Securities -
Sinking Fund
Section 3.01. Applicability of Article..........................................................................17
Section 3.02. Notice of Redemption; Selection of Securities.....................................................17
Section 3.03. When Securities Called for Redemption Become Due and Payable......................................18
Section 3.04. Sinking Fund......................................................................................19
Section 3.05. Use of Acquired Securities to Satisfy Sinking Fund Obligations....................................20
Section 3.06. Effect of Failure to Deliver Officers' Certificate or Securities..................................20
Section 3.07. Manner of Redeeming Securities....................................................................20
Section 3.08. Sinking Fund Moneys to Be Held as Security During Continuance of Event of Default; Exceptions.....21
Article Four
Particular Covenants of the Company
Section 4.01. Payments of Principal of (and Premium, If Any) and Interest, If Any, on Securities................21
Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange and
Payment of Securities .........................................................................22
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee............................................22
</TABLE>
<PAGE> 5
iii
<TABLE>
<S> <C>
Section 4.04. Duties of Paying Agents, etc......................................................................22
Section 4.05. Limitation on Liens...............................................................................23
Section 4.06. Limitation on Sale and Lease-Back.................................................................25
Section 4.07. Exempted Indebtedness.............................................................................25
Section 4.08. Statement by Officers as to Default...............................................................26
Section 4.09. Further Instruments and Acts......................................................................26
Article Five
Holders' Lists and Reports by the Company and the Trustee
Section 5.01. Company to Furnish Trustee Information as to Names and Addresses of Holders.......................26
Section 5.02. Preservation of Information; Communications to Holders............................................27
Section 5.03. Reports by Company................................................................................27
Section 5.04. Reports by Trustee................................................................................27
Article Six
Remedies of the Trustee and Holders in Event of Default
Section 6.01. Events of Default.................................................................................27
Section 6.02. Collection of Indebtedness by Trustee, etc........................................................29
Section 6.03. Application of Moneys Collected by Trustee........................................................31
Section 6.04. Limitation on Suits by Holders....................................................................32
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default..............32
Section 6.06. Rights of Holders of Majority in Principal Amount of Securities of
Any Series to Direct Trustee and to Waive Default .............................................33
Section 6.07. Trustee to Give Notice of Defaults Known to It, But May Withhold Such
Notice in Certain Circumstances ...............................................................33
Section 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Indenture or Against the Trustee ..............................................................33
Section 6.09. Waiver of Stay or Extension Laws..................................................................34
Article Seven
Concerning the Trustee
Section 7.01. Certain Duties and Responsibilities...............................................................34
Section 7.02. Certain Rights of Trustee.........................................................................35
Section 7.03. Trustee Not Liable for Recitals in Indenture or in Securities.....................................36
Section 7.04. Trustee, Paying Agent or Security Registrar May Own Securities....................................36
Section 7.05. Moneys Received by Trustee to Be Held in Trust....................................................37
Section 7.06. Compensation and Reimbursement....................................................................37
Section 7.07. Right of Trustee to Rely on an Officers' Certificate Where
No Other Evidence Specifically Prescribed .....................................................37
Section 7.08. Disqualification; Conflicting Interests...........................................................38
Section 7.09. Requirements for Eligibility of Trustee...........................................................38
</TABLE>
<PAGE> 6
iv
<TABLE>
<S> <C>
Section 7.10. Resignation and Removal of Trustee................................................................38
Section 7.11. Acceptance by Successor to Trustee................................................................39
Section 7.12. Successor to Trustee by Merger, Consolidation or Succession to Business...........................40
Section 7.13. Preferential Collection of Claims Against Company.................................................41
Section 7.14. Appointment of Additional and Separate Trustees...................................................41
Article Eight
Concerning the Holders
Section 8.01. Evidence of Action by Holders.....................................................................43
Section 8.02. Proof of Execution of Instruments and of Holding of Securities....................................44
Section 8.03. Who May Be Deemed Owner of Securities.............................................................44
Section 8.04. Securities Owned by Company or Controlled or Controlling Companies
Disregarded for Certain Purposes ..............................................................44
Section 8.05. Instruments Executed by Holders Bind Future Holders...............................................45
Article Nine
Holders' Meetings and Consents
Section 9.01. Purposes for Which Meeting May Be Called..........................................................45
Section 9.02. Manner of Calling Meetings........................................................................46
Section 9.03. Call of Meetings by Company or Holders............................................................46
Section 9.04. Who May Attend and Vote at Meetings...............................................................46
Section 9.05. Regulations May Be Made by Trustee................................................................46
Section 9.06. Manner of Voting at Meetings and Record to Be Kept................................................47
Section 9.07. Written Consent in Lieu of Meetings...............................................................48
Section 9.08. No Delay of Rights by Meeting.....................................................................48
Article Ten
Supplemental Indentures
Section 10.01. Purposes for Which Supplemental Indentures May Be Entered into Without Consent of Holders........48
Section 10.02. Modification of Indenture with Consent of Holders of a Majority in
Principal Amount of Securities...............................................................50
Section 10.03. Effect of Supplemental Indentures................................................................51
Section 10.04. Securities May Bear Notation of Changes by Supplemental Indentures...............................51
Article Eleven
Consolidation, Merger, Sale, Conveyance or Lease
Section 11.01. Company May Consolidate, etc., on Certain Terms..................................................51
Section 11.02. Securities to Be Secured in Certain Events.......................................................52
Section 11.03. Successor Corporation to Be Substituted..........................................................52
Section 11.04. Opinion of Counsel to Be Given Trustee...........................................................53
</TABLE>
<PAGE> 7
v
<TABLE>
<S> <C>
Article Twelve
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 12.01. Satisfaction and Discharge of Indenture..........................................................53
Section 12.02. Defeasance and Discharge of Securities or Certain Obligations....................................53
Section 12.03. Application by Trustee of Funds Deposited for Payment of Securities..............................56
Section 12.04. Repayment of Moneys Held by Paying Agent.........................................................57
Section 12.05. Repayment of Moneys Held by Trustee..............................................................57
Article Thirteen
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 13.01. Incorporators, Stockholders, Officers, Directors and Employees
of Company Exempt from Individual Liability...................................................57
Article Fourteen
Miscellaneous Provisions
Section 14.01. Successors and Assigns of Company Bound by Indenture.............................................58
Section 14.02. Acts of Board, Committee or Officer of Successor Corporation Valid...............................58
Section 14.03. Required Notices or Demands......................................................................58
Section 14.04. Indenture and Securities to Be Construed in Accordance with the Laws of the State of Illinois....58
Section 14.05. Officers' Certificate and Opinion of Counsel to Be Furnished upon
Application or Demand by the Company..........................................................59
Section 14.06. Payments Due on Holidays.........................................................................59
Section 14.07. Provisions Required by Trust Indenture Act of 1939 to Control....................................59
Section 14.08. Indenture May be Executed in Counterparts........................................................59
Section 14.09. Separability Clause..............................................................................59
</TABLE>
<PAGE> 8
INDENTURE, dated as of the 1st day of. November, 1986 between Illinois
Tool Works Inc., a corporation incorporated under the laws of Delaware (the
"Company"), and The First National Bank of Chicago, a national banking
association duly organized and existing under the laws of the United States of
America (the "Trustee").
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured debentures, notes and other
evidences of indebtedness (hereinafter referred to as the "Securities"), to be
issued in one or more series in an unlimited amount as provided in this
Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement of the Company have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In consideration of the premises and of the sum of One Dollar duly paid
by the Trustee to the Company at the execution and delivery of these presents,
the receipt whereof is hereby acknowledged, the Company and the Trustee covenant
and agree with each other, for the equal and proportionate benefit of all
Holders from time to time of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The terms defined in this Section
1.01 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section
1.01:
Authorized Newspaper:
The term "authorized newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day on each business
day in each calendar week and of general circulation in Chicago, Illinois,
whether or not such newspaper is published on Saturdays, Sundays and legal
holidays. Whenever, under the provisions of this Indenture, two or more
publications of a notice or other communication are required or permitted, such
publications may be in the same or different authorized newspapers. If, because
of temporary or permanent suspension of publication or general circulation of
any newspaper or for any other reason, it is impossible or impracticable to
publish any notices required by this Indenture in the manner herein provided,
then such publication in lieu thereof or such other notice as shall be made with
the approval of the Trustee shall constitute a sufficient publication of such
notice.
<PAGE> 9
2
Bankruptcy Law:
The term "Bankruptcy Law" shall mean Title 11 of the U.S. Code or any
similar federal or state law for the relief of debtors.
Board of Directors:
The term "Board of Directors," when used with reference to the Company,
shall mean the Board of Directors of the Company or any committee of such Board
to which the powers of such Board have lawfully been delegated.
Business Day:
The term "business day" shall mean any day other than a Saturday or
Sunday and other than a day on which banking institutions in Chicago, Illinois,
or New York, New York, are authorized or obligated by law or executive order to
close.
Certified Board Resolution:
The term "Certified Board Resolution" shall mean one or more
resolutions certified by the Secretary or any Assistant Secretary of the Company
to have been duly adopted by the Board of Directors of, the Company and to be in
full force and effect on the date of such certification, which are delivered to
the Trustee.
Company:
The term "Company" shall mean Illinois Tool Works Inc. and, subject to
the provisions of Article Eleven, shall mean its successors and assigns from
time to time hereafter.
Company Direction:
The term "Company Direction" shall mean a written direction, order or
instruction, signed in the name of the Company by its Chairman or its Vice
Chairman or its President or its Chairman of the Executive Committee or any Vice
President and by its Treasurer or its Secretary or any Assistant Treasurer or
any Assistant Secretary and delivered to the Trustee.
Corporate Trust Office:
The term "Corporate Trust Office", or other similar term, shall mean
the principal office of the Trustee in Chicago, Illinois, at which at any
particular time its corporate trust business shall be principally administered,
or, if no such office is maintained, such other office of the Trustee as shall
be designated. The Corporate Trust Office on the date hereof is located at One
First National Plaza, Chicago, Illinois 60670-0126, Attention: Corporate Trust
Division.
<PAGE> 10
3
Custodian:
The term "Custodian" shall mean any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Dollars and $:
The term "Dollars" and the symbol "$" shall mean lawful money of the
United States of America.
Event of Default:
The term "Event of Default" shall mean any event specified in Section
6.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
Government Obligations:
The term "Government Obligations" with respect to any series of
Securities shall mean direct noncallable obligations of the government which
issued the currency in which the Securities of that series are denominated,
noncallable obligations the payment of the principal of and interest on which is
fully guaranteed by such government, and noncallable obligations on which the
full faith and credit of such government is pledged to the payment of the
principal thereof and interest thereon.
Holder:
The term "Holder", with respect to a registered Security, shall mean
any person in whose name such Security shall be registered on the Security
Register, and, with respect to an unregistered Security, shall mean the bearer
thereof.
Indenture:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the terms and forms of particular series of
Securities established as contemplated hereunder; provided, however, that if at
any time more than one Trustee is serving as such under this instrument,
"Indenture" shall mean, with respect to any one or more series of Securities for
which any such Trustee is serving, this Indenture as originally executed or as
amended or supplemented as herein provided, exclusive, however, of any
provisions or terms which relate solely to one or more series of Securities for
which such Trustee is not serving, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted with respect to a
particular series of Securities executed and delivered after such Trustee had
become a Trustee hereunder but with respect to which series such Trustee was not
serving as Trustee.
<PAGE> 11
4
Interest Payment Date:
The term "interest payment date" shall mean the date on which an
instalment of interest on any series of Securities shall become due and payable,
as therein or herein provided.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by any
two of the Chairman, the Vice Chairman, the President, the Chairman of the
Executive Committee, any Vice President, the Secretary, any Assistant Secretary,
the Treasurer or any Assistant Treasurer of the Company, provided that one of
the officers signing the Officers' Certificate shall be the Chairman, the Vice
Chairman, the President, the Chairman of the Executive Committee, or any Vice
President (which Vice President, if executing any Officers' Certificate
delivered pursuant to Section 2.01, shall be the chief financial officer of the
Company, or, if no such Vice President exists, a Vice President having similar
responsibility as to financial matters). Each such certificate shall include
(except as otherwise provided in this Indenture) the statements provided for in
Section 14.05.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of, or counsel to, the Company or other
counsel. Each such opinion shall include (except as otherwise provided in this
Indenture) the statements provided for in Section 14.05.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Stated Maturity thereof
pursuant to Section 6.01.
Outstanding:
The term "outstanding" when used with reference to Securities of any
series, subject to the provisions of Section 8.04, shall mean, as of any
particular time, all Securities of such series authenticated by the Trustee and
delivered under this Indenture, except:
(a) Securities of such series theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities of such series or portions thereof for the
payment or redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own paying
agent); provided that, if such Securities or portions thereof are to
be redeemed, notice of
<PAGE> 12
5
such redemption shall have been given as in Article Three provided or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities of such series in lieu of or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.07, other than Securities as to
which the Trustee receives proof satisfactory to it that such Security
is held by a bona fide purchaser.
Principal Property:
The term "Principal Property" shall mean any manufacturing plant or
other facility owned or leased by the Company or any Subsidiary and located
within the continental United States of America or Hawaii, except any such plant
or facility which the Board of Directors by resolution declares is not of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries as an entirety and which, when taken together with all
other plants and facilities as to which such a declaration has been so made, is
so declared by the Board of Directors to be not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries as an
entirety.
Record Date:
The term "Record Date" as used with respect to any interest payment
date shall mean the close of business on the 15th day of the month preceding the
month in which an interest payment date occurs, if such interest payment date is
the first day of such month, or the first day of the month in which an interest
payment date occurs, if such interest payment date is the 15th day of such
month, in each case whether or not a business day, or such other dates with
respect to a particular series of Securities as may be specified in the
instrument establishing such series.
Responsible Officer:
The term "responsible officer" when used with respect to the Trustee
shall mean the Chairman or Vice Chairman of the Board of Directors, the Chairman
or Vice Chairman of the Executive Committee of the Board of Directors, the
President, any Vice President, any Second or Assistant Vice President, the
Cashier, any Assistant Cashier, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer, any Assistant Trust
Officer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean any Subsidiary (i)
substantially all the property of which is located, or substantially all of the
business of which is carried on, within the continental United States of America
or Hawaii or which is incorporated under the laws of any
<PAGE> 13
6
state of the United States of America and (ii) which owns or leases a Principal
Property; provided, however, that such term shall not include any Subsidiary
which is principally engaged in leasing or financing installment receivables or
which is principally engaged in financing the operations of the Company and its
Subsidiaries outside the continental United States of America and Hawaii.
Security or Securities:
The terms "Security" or "Securities" shall have the meaning stated in
the recital of this Indenture and shall more particularly mean any Security or
such Securities, as the case may be, authenticated and delivered pursuant to
this Indenture; provided, however, that if at any time there is more than one
Trustee serving under this Indenture, "Securities" with respect to this
Indenture as to which such Trustee is serving shall have the meaning stated in
the recital and shall more particularly mean Securities authenticated and
delivered pursuant to this Indenture, exclusive of Securities of any series as
to which such Trustee is not serving as Trustee.
SEC:
The term "SEC" shall mean the United States Securities and Exchange
Commission.
Sinking Fund:
The term "Sinking Fund" shall mean any fund established by the Company
for redemption of the Securities of any series prior to Stated Maturity.
Stated Maturity:
The term "Stated Maturity", when used with respect to any Security,
shall mean the date on which the last payment of principal of such Security is
due and payable in accordance with the terms thereof.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a majority of
the outstanding securities of which having ordinary voting power to elect a
majority of the board of directors of such corporation (whether or not any other
class of securities has or might have voting power by reason of the happening of
a contingency) is at the time owned or controlled, directly or indirectly, by
the Company, or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
Trustee:
The term "Trustee" shall mean the Trustee named in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions hereof, and thereafter "Trustee" shall mean or include
all Trustees hereunder, and, subject to the
<PAGE> 14
7
provisions of Article Seven, shall also include its successors and assigns, and,
unless the context otherwise requires, shall also include any co-trustee or
co-trustees or separate trustee or trustees appointed pursuant to Section 7.14.
Trust Indenture Act of 1939 and TIA:
The terms "Trust Indenture Act of 1939" and "TIA" (except as herein
otherwise expressly provided) shall mean the Trust Indenture Act of 1939 as in
force on the date of this Indenture.
SECTION 1.02. Other Definitions. The terms listed below in this Section
1.02 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and any indenture
supplemental hereto shall have the respective meanings specified in the sections
of this Indenture set opposite the particular term:
<TABLE>
<CAPTION>
DEFINED IN
TERM SECTION
---- -------
<S> <C>
Consolidated Net Tangible Assets............................................................... 4.07
Debt........................................................................................... 4.05
Defaulted Interest............................................................................. 2.03
Funded Debt.................................................................................... 4.06
Liens.......................................................................................... 4.05
Mandatory Sinking Fund Payment................................................................. 3.04
Optional Sinking Fund Payment.................................................................. 3.04
Sale and Lease-Back Transaction................................................................ 4.06
Security Register and Security Registrar....................................................... 2.05
Value.......................................................................................... 4.06
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture Act of
1939. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. All terms not
defined in this Article I which are defined in the TIA, or which are by
reference therein defined in the United States Securities Act of 1933, as
amended, (except as herein otherwise expressly provided and unless the context
otherwise requires) shall have the meanings assigned to such terms in the TIA
and in such Securities Act as in force as of the date of this Indenture. The
following TIA terms used in the provisions of the TIA incorporated by reference
in this Indenture shall have the following meanings:
Commission:
The term "Commission" shall mean the SEC.
Indenture Securities:
The term "indenture securities" shall mean the Securities.
<PAGE> 15
8
Indenture to Be Qualified:
The term "indenture to be qualified" shall mean this Indenture.
Indenture Trustee or Institutional Trustee:
The terms "indenture trustee" or "institutional trustee" shall mean the
Trustee.
Obligor:
The term "obligor" with reference to indenture securities shall mean
the Company.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited. Establishment of 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. All Securities of
any one series shall be substantially identical except as to denomination and
except as the Company in an Officers' Certificate delivered pursuant to this
Section 2.01 or in any supplemental indenture may otherwise provide. The
Securities may bear interest at such lawful rate or rates, from such date or
dates, shall mature at such time or times, may be redeemable at such price or
prices and upon such terms, including, without limitation, out of proceeds from
the sale of other Securities, or other indebtedness of the Company, and may
contain and/or be subject to such other terms and provisions as shall be
determined by the Company prior to the issuance of such Securities in accordance
with the authority granted in one or more resolutions of the Board of Directors
and set forth in an Officers' Certificate or a supplemental indenture, which
instrument shall establish with respect to each series of Securities:
(1) the designation of the Securities of such series, which
shall distinguish the Securities of one series from all other
Securities:
(2) the limit upon the aggregate principal amount at Stated
Maturity of the Securities of such series which may be authenticated
and delivered under this Indenture (not including Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of other Securities of such series pursuant to
Sections 2.05, 2.06, 2.07, 3.02 or 10.04);
(3) the rate or rates at which the Securities of such series
shall bear interest, if any, or the formula by which interest shall
accrue, the dates from which interest shall
<PAGE> 16
9
accrue, the interest payment dates on which such interest shall be
payable, and the Record Date for the interest payable on any interest
payment date (if other than as provided herein);
(4) the Stated Maturity of the Securities of such series;
(5) the period or periods within which, the price or prices
at which, and the terms and conditions upon which, the Securities of
such series may be redeemed, in whole or in part, at the option of the
Company;
(6) the obligation, if any, of the Company to redeem or
purchase Securities of such series pursuant to a sinking, purchase or
analogous fund or at the option of the holder thereof and the period
or periods within which, the price or prices at which, and the terms
and conditions upon which, the Securities of such series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(7) if other than the principal amount at Stated Maturity,
the portion of the principal amount at Stated Maturity of the
Securities of such series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01;
(8) if other than Dollars and denominations of $1,000 and any
integral multiple thereof, the currency or composite currencies and
denominations in which Securities of such series shall be issuable;
(9) the form of Security to be used to evidence ownership of
Securities of such series;
(10) any terms with respect to conversion of the Securities
of such series, warrants attached thereto or terms pursuant to which
warrants may exist;
(11) the place or places where the principal of (and premium,
if any) and interest, if any, on the Securities of such series shall
be payable;
(12) any additional offices or agencies maintained pursuant
to Section 4.02;
(13) whether the Securities of such series shall be issued as
registered Securities or as unregistered Securities, with or without
coupons;
(14) the applicability, if any, of Section 12.02; and
(15) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this
Indenture).
SECTION 2.02. Form of Securities and Trustee's Certificate of
Authentication. The Securities of each series shall be substantially in the form
established by or pursuant to one or
<PAGE> 17
10
more resolutions of the Board of Directors, with such specific terms, additions
or omissions as may be determined pursuant to an Officers' Certificate or a
supplemental indenture as contemplated in Section 2.01 hereof, in each case with
such letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of the
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage. The
Trustee's certificate of authentication to be borne by such Securities shall be
in the form set forth below:
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Securities of the series designated herein
issued under the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By
------------------------
Authorized Signature
SECTION 2.03. Denomination, Authentication and Dating of Securities.
The Securities of each series may be issued as registered Securities or, if
provided by the terms of the instrument establishing such series of Securities,
as unregistered Securities, with or without coupons. The Securities of each
series shall be issuable in denominations of $1,000 and any integral multiple of
$1,000, unless otherwise provided by the terms of the instrument establishing
such series of Securities. Each Security shall be dated as of the date of its
authentication.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Direction for
authentication and delivery of such Securities, and the Trustee shall thereupon
authenticate and deliver such Securities in accordance with such Company
Direction. Prior to the issuance of Securities of any series, the Trustee shall
be entitled to receive, and subject to Section 7.01, shall be fully protected in
relying upon:
(1) a Certified Board Resolution pursuant to which the
issuance of the Securities of such series is authorized;
(2) an executed supplemental indenture, if any;
<PAGE> 18
11
(3) an Officers' Certificate, if any, delivered in accordance
with Section 2.01 and an Officers' Certificate as to the absence of
any Event of Default or any event which with notice or lapse of time
or both could become an Event of Default; and
(4) an Opinion of Counsel of the Company which in substance
shall state that:
(i) the form and the terms of the Securities of such
series have been established in conformity with the
provisions of this Indenture;
(ii) the Securities of such series have been duly
authorized, and, when executed and authenticated in
accordance with the provisions of this Indenture and subject
to any other conditions specified in such Opinion of Counsel,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of this Indenture;
(iii) the registration statement, if any, relating to
the Securities of such series and any amendments thereto has
become effective under the Securities Act of 1933 and to the
best knowledge of such counsel, no stop order suspending the
effectiveness of such registration statement, as amended, has
been issued and no proceedings for that purpose have been
instituted or threatened;
(iv) no consent, approval, authorization or order of
any court or governmental agency or body in the United States
is required for the issuance of the Securities of such
series, except such as have been obtained and such as may be
required under the blue sky laws of any jurisdiction in the
United States in connection with the purchase and
distribution of the Securities of such series;
(v) neither the issue nor sale of the Securities of
such series will conflict with, result in a breach of or
constitute a default under the terms of any indenture or
other agreement or instrument known to such counsel and to
which the Company or any of its Subsidiaries is a party or is
bound, or any order or regulation known to such counsel to be
applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company or any of its
Subsidiaries; and
(vi) the authentication and delivery of the
Securities of such series by the Trustee in accordance with
the Company Direction so to do, and the Company's execution
and delivery of the Securities of such series, will not
violate the terms of this Indenture.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of such series (A) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (B) if the Trustee in
good faith by its board of directors or trustees, executive committee or a trust
committee of directors or trustees and/or vice presidents shall
<PAGE> 19
12
determine that such action would expose the Trustee to personal liability to
Holders of outstanding Securities of any series.
So long as there is no existing default in the payment of interest on
registered Securities of any series, all such Securities authenticated by the
Trustee after the close of business on the Record Date for the payment of
interest on any interest payment date relating thereto and prior to such
interest payment date shall bear interest from such interest payment date;
provided, however, that if and to the extent that the Company shall default in
the interest due on such interest payment date, then any such Securities shall
bear interest from the next preceding interest payment date relating to such
Security with respect to which interest has been paid or duly provided for on
such Securities, or if no interest has been paid or duly provided for on such
Securities, from the date from which interest shall accrue as such date is set
forth in the instrument establishing the terms of such Securities.
The person in whose name any Security is registered at the close of
business on any Record Date with respect to any interest payment date shall be
entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Security upon any registration and
transfer or exchange thereof subsequent to such Record Date and prior to such
interest payment date, except if and to the extent the Company shall default in
the payment of the interest due on such interest payment date, in which case
such defaulted interest (herein called "Defaulted Interest") shall be paid to
the persons in whose names outstanding Securities of such series are registered
at the close of business on a subsequent record date, which shall not be less
than five business days preceding the date of payment of such Defaulted Interest
established for such purpose by notice given by mail by or on behalf of the
Company to Holders of such Securities not less than 15 days preceding such
subsequent record date. Such notice shall be given to the persons in whose names
such outstanding Securities of such series are registered at the close of
business on the third business day preceding the date of the mailing of such
notice.
SECTION 2.04. Execution of Securities. The Securities and coupons
appertaining thereto, if any, shall be signed on behalf of the Company by its
Chairman or its Vice Chairman or its President or its Chairman of the Executive
Committee or any Vice President and by its Secretary or any Assistant Secretary
under its corporate seal. Such signatures may be the manual or facsimile
signatures of the present or any future such authorized officers and may be
imprinted or otherwise reproduced on the Securities and such coupons. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities and such coupons.
Only such Securities as shall bear thereon a Trustee's certificate of
authentication substantially in the form provided in Section 2.03, signed
manually by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. The Trustee's certificate of
authentication on any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Securities or such coupons shall cease to be such officer before the Securities
or such coupons so signed shall have
<PAGE> 20
13
been authenticated by the Trustee and delivered or disposed of by the Company,
such Securities and such coupons nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Securities and such coupons
had not ceased to be such officer of the Company; and any Security or such
coupons may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Security or such coupons, shall be the proper
officers of the Company, although at the date of such Security or such coupons
or of the execution of this Indenture any such person was not such officer.
SECTION 2.05. Registration of Transfer and Exchange. The Company shall
keep, at an office or agency maintained by the Company in accordance with the
provisions of Section 4.02, a register for each series of registered Securities
(such register being herein referred to as the "Security Register"), in which,
subject to such reasonable regulations as it may prescribe, the Company shall
register Securities of such series and shall register the transfer of such
Securities as in this Article Two provided. At all reasonable times the Security
Register shall be open for inspection by the Trustee. Upon due presentment for
registration of transfer of any such Security at such office or agency, or such
other offices or agencies as the Company may designate, the Company shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Security or Securities of authorized
denominations, of the same series and of like aggregate principal amount at
Stated Maturity.
Unless and until otherwise determined by or pursuant to the Company by
resolution of its Board of Directors, the Security Register for the purpose of
registration, exchange or registration of transfer of registered Securities
shall be kept at the Corporate Trust Office and, for this purpose, the Trustee
shall be designated the "Security Registrar".
At the option of the Holder, Securities of any series may be exchanged
for Securities of the same series of like aggregate principal amount at Stated
Maturity and of other authorized denominations. Securities to be so exchanged
shall be surrendered at the offices or agencies to be maintained by the Company
as provided in Section 4.02, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Security or Securities which
the Holder making the exchange shall be entitled to receive.
All Securities presented or surrendered for registration of transfer,
exchange, redemption or payment shall (if so required by the Company or the
Security Registrar) be duly endorsed or be accompanied by a written instrument
or instruments of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder or his attorney duly authorized in
writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Securities of any series for a period of 15 days next
preceding any selection of Securities of such series to be redeemed, or (b) to
register the transfer of or exchange any Securities of such series
<PAGE> 21
14
selected, called or being called for redemption in whole or in part except, in
the case of any security to be redeemed in part, the portion thereof not so to
be redeemed.
SECTION 2.06. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute and deliver and the Trustee, upon
Company Direction, shall authenticate and deliver temporary Securities (printed,
lithographed or typewritten), of any authorized denomination, and substantially
in the form of the definitive Securities, but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Temporary Securities may be issued without a recital
of the specific redemption prices, if any, applicable to such Securities, and
may contain such reference to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. The Company
shall execute and furnish definitive Securities as soon as practicable and
thereupon any or all temporary Securities may be surrendered in exchange
therefor at the Corporate Trust Office, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities a like aggregate principal
amount at Stated Maturity of definitive Securities of the same series. Until so
exchanged, the temporary Securities shall be entitled to the same benefits under
this Indenture as definitive Securities authenticated and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case
any temporary or definitive Security and, in the case of a definitive Security,
coupons appertaining thereto, if any, shall become mutilated or be destroyed,
lost or stolen, the Company in its discretion may execute, and upon its request
the Trustee shall authenticate and deliver, a new Security or such coupons of
the same series bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Security or such coupons, or in lieu of and
in substitution for the Security or such coupons so destroyed, lost or stolen.
In every case, the applicant for a substituted Security or such coupons shall
furnish to the Company and to the Security Registrar and any paying agent, such
security or indemnity as may be required by them to save each of them harmless
from all risk, however remote, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and to the Security Registrar
and any paying agent, evidence to their satisfaction of the destruction, loss or
theft of such Security or such coupons and of the ownership thereof. The Trustee
may authenticate any such substituted Security and deliver the same upon Company
Direction. Upon the issuance of any substituted Security or such coupons, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Security which has matured or is about
to mature or which has been called for redemption shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substituted
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish the Company and any paying agent with such security or indemnity
as either may require to save it harmless from all risk, however remote, and, in
case of destruction, loss or theft, evidence to the satisfaction of the Company
of the destruction, loss or theft of such Security and of the ownership thereof.
<PAGE> 22
15
Every substituted Security of any series or coupon issued pursuant to
the provisions of this Section 2.07 by virtue of the fact that any Security or
coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
or coupon shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of such series or coupons duly issued and delivered hereunder. All Securities
and coupons shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and coupons, and shall preclude
(to the extent lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. Cancellation of Surrendered Securities. All Securities
surrendered for payment, redemption, registration of transfer or exchange, and
all coupons surrendered for payment, shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee for cancellation by it, or, if
surrendered to the Trustee, shall be cancelled by it, and all Securities
delivered to the Trustee in discharge or satisfaction in whole or in part of any
Sinking Fund payment (referred to in Section 3.04) shall be cancelled by the
Trustee and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. On request of the Company,
the Trustee shall deliver to the Company cancelled Securities and coupons held
by the Trustee. With the consent of the Company, the Trustee may destroy
cancelled Securities and coupons and deliver a certificate of destruction to the
Company. If the Company shall acquire any of the Securities or coupons, however,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness or rights represented by such Securities or coupons unless and
until the same are delivered or surrendered to the Trustee for cancellation.
SECTION 2.09. Provisions of Indenture and Securities for the Sole
Benefit of the Parties and the Holders. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the Holders of
the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained, all its covenants, conditions and provisions being for the sole
benefit of the parties hereto and the Holders.
SECTION 2.10. Computation of Interest. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2.11. Authenticating Agents. The Trustee shall, if requested in
writing so to do by the Company, promptly appoint an agent or agents of the
Trustee who shall have authority to authenticate Securities of any series in the
name and on behalf of the Trustee. Such appointment by the trustee shall be
evidenced by a certificate executed by a Responsible Officer of the Trustee
delivered to the Company prior to the effectiveness of such appointment
designating such agent or agents and stating that all appropriate corporate
action has been taken by the Trustee in connection with such appointment.
Wherever reference is made in this Indenture to the
<PAGE> 23
16
authentication of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent.
Any such authenticating agent shall be an agent acceptable to the
Company and shall at all times be a corporation which is organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to act as authenticating agent, having a combined
capital and surplus of at least $1,000,000, and subject to supervision or
examination by Federal or State authority.
An authenticating agent may at any time resign with respect to one or
more series of Securities by giving written notice of resignation to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an
authenticating agent with respect to one or more series of Securities by giving
written notice of termination to such authenticating agent and to the Company.
Upon receiving such notice of resignation or upon such termination, or in case
at any time an authenticating agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee promptly may appoint a
successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 7.06.
The provisions of Sections 7.02, 7.03 and 7.04 shall be applicable to
any authenticating agent.
Pursuant to each appointment of an authenticating agent made under this
Section, the Securities of each series covered by such appointment may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in substantially the following form:
<PAGE> 24
17
(ALTERNATE FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION)
This is one of the Securities of the series designated herein issued
under the within-mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO, AS TRUSTEE
By
-----------------------------
AUTHENTICATING AGENT
By
-----------------------------
AUTHENTICATING AGENT
ARTICLE THREE
REDEMPTION OF SECURITIES - SINKING FUND
SECTION 3.01. Applicability of Article. The Company may become
obligated, or reserve the right, to redeem and pay, prior to Stated Maturity,
all or any part of the Securities of any series, either by optional redemption,
Sinking Fund or otherwise, by provision therefor in the instrument establishing
such series of Securities pursuant to Section 2.01 or in the Securities of such
series. Redemption of any series shall be made in accordance with the terms of
such Securities and to the extent that this Article does not conflict with such
terms, in accordance with this Article.
SECTION 3.02. Notice of Redemption; Selection of Securities. In case
the Company shall exercise the right or be obligated to redeem Securities as
provided for in the first sentence of Section 3.01, it shall fix a date for
redemption (unless, by the terms of the instrument establishing such series of
Securities or the terms of such Securities, such date is fixed) and it, or, at
its request the Trustee, in the name of and at the expense of the Company, shall
give notice of such redemption to the Holders of the Securities to be redeemed
as a whole or in part, with respect to registered Securities, by mailing a
notice of such redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Security Register and, with respect to unregistered Securities, by publishing in
an authorized newspaper notice of such redemption on two separate days, each of
which is not less than 30 nor more than the 60 days prior to the date fixed for
redemption. Any notice which is mailed or
<PAGE> 25
18
published, as the case may be, in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
actually receives such notice. In any case, failure duly to give notice by mail,
or any defect in the notice, to the Holder of any registered Security of any
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impractical to mail notice of any event to Holders of
registered Securities when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Each such notice of redemption shall specify the designation of the
series of the Securities to be redeemed, the date fixed for redemption and the
redemption price at which Securities are to be redeemed, and shall state that
payment of the redemption price of the Securities or portions thereof to be
redeemed will be made at the offices or agencies to be maintained by the Company
in accordance with the provisions of Section 4.02 upon presentation and
surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in such notice, and that, on and after such
date, interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Securities of any series are to be redeemed, the
notice to the Holders of Securities to be redeemed shall specify the Securities
to be redeemed. In case any Security is to be redeemed in part only, such notice
shall state the portion of the principal amount thereof to be redeemed, and
shall state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of the same series in authorized
denominations and in a principal amount at Stated Maturity equal to the
unredeemed portion thereof will be issued.
If less than all the Securities of any series are to be redeemed, the
Company shall give the Trustee written notice, at least 60 days (or such shorter
period acceptable to the Trustee) in advance of the date fixed for redemption,
as to the aggregate principal amount at Stated Maturity of Securities of such
series to be redeemed, which shall be an integral multiple of the minimum
authorized denomination of such series, and thereupon the Trustee shall select,
in such manner as it shall deem appropriate and fair, the Securities of such
series to be redeemed in whole or in part and shall thereafter promptly notify
the Company in writing of the numbers of the Securities so to be redeemed and,
in the case of Securities to be redeemed in part only, the principal amount at
Stated Maturity so to be redeemed.
SECTION 3.03. When Securities Called for Redemption Become Due and
Payable. If the giving of notice of redemption shall have been completed as
provided in Section 3.02, 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 fixed for
redemption (unless the Company shall default in the payment of such Securities
at the redemption price, together with interest accrued to the date fixed for
redemption) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue. On presentation and
<PAGE> 26
19
surrender of such Securities on or after the date fixed for redemption at the
place of payment specified in such notice, such Securities shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued to the date fixed for redemption; provided, however, that
instalments of interest becoming due on the date fixed for redemption on
Securities which are in registered form shall be payable to the Holders of such
Securities or of one or more previous such Securities evidencing all or a
portion of the same debt as that evidenced by such particular Securities,
registered as such on the relevant Record Dates according to their terms and the
provisions of Section 2.03.
Upon presentation of any Security which is redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, at the expense of the Company, a new Security or
Securities of the same series in authorized denominations and in a principal
amount at Stated Maturity equal to the unredeemed portion of the Security so
presented.
SECTION 3.04. Sinking Fund. In the event that the instrument
establishing the terms of a particular series shall provide for a Sinking Fund,
the Company covenants that as and for a Sinking Fund for the redemption of
Securities of such series, so long as any of the Securities of such series are
outstanding:
(a) It will pay to the Trustee or to a paying agent (or, if
the Company is acting as its own paying agent, segregate and hold in
trust as provided in Section 4.04) on or before each date set forth as
a Sinking Fund payment date in the instrument establishing such series,
a sum in cash sufficient to retire on each such date, at the Sinking
Fund redemption price provided for in such instrument and upon the
conditions, if any, applicable thereto as specified in such instrument,
the principal amount of such Securities as specified in such
instrument. Each such date is herein called a "Sinking Fund payment
date", and each sum payable as provided in this paragraph (a) is herein
called a "mandatory Sinking Fund payment".
(b) If the instrument establishing any series of Securities so
provides, the Company may elect to pay to the Trustee or to a paying
agent (or, if the Company is acting as its own paying agent, segregate
and hold in trust as provided in Section 4.04) on or before any Sinking
Fund payment date with respect to a particular series of Securities, an
additional sum in cash sufficient to retire on such Sinking Fund
payment date, at the Sinking Fund redemption price, up to any
additional principal amount of Securities set forth in such instrument.
Any sum payable as provided in this paragraph (b) is herein called an
"optional Sinking Fund payment". Any such election by the Company shall
be evidenced by an Officers' Certificate (which shall conform to
Section 14.05), delivered to the Trustee not later than 60 days (or
such shorter period acceptable to the Trustee) preceding such Sinking
Fund payment date, which Certificate shall set forth the amount of the
optional Sinking Fund payment which the Company then elects to pay. The
Company's election, so evidenced, shall be irrevocable and the Company
shall, upon delivery of such Certificate to the Trustee, become bound
to pay or segregate and hold in trust as aforesaid on or before such
Sinking Fund payment date the amount specified in
<PAGE> 27
20
such Certificate. Unless otherwise provided in the instrument
establishing such series, any such right to make an optional Sinking
Fund payment shall be noncumulative and shall in no event relieve the
Company of its obligation set forth in paragraph (a) of this Section
3.04.
All moneys paid or segregated and held in trust pursuant to this
Section 3.04 shall be applied on the Sinking Fund payment date in respect of
which such payment or segregation was made, to the redemption of Securities as
provided in this Article Three.
SECTION 3.05. Use of Acquired Securities to Satisfy Sinking Fund
Obligations. In lieu of making all or any Sinking Fund payment in cash as may be
required by Section 3.04(a), the Company may, not later than 60 days (or such
shorter period acceptable to the Trustee) preceding any applicable Sinking Fund
payment date relating to a particular series of Securities, deliver to the
Trustee for cancellation Securities of such series theretofore acquired by the
Company (otherwise than through the use of Sinking Fund moneys pursuant to
Section 3.07) and not theretofore made the basis for the reduction of any
Sinking Fund payment with respect to such series, accompanied by an Officers'
Certificate (which shall conform to Section 14.05) stating the Company's
election to use such Securities to reduce the amount of such Sinking Fund
payment with respect to such series (specifying the amount of the reduction of
each such payment) and certifying that such Securities have not theretofore been
made the basis for a reduction of any Sinking Fund payment with respect to such
series. Securities so delivered shall be credited against the Sinking Fund
payment due on such Sinking Fund payment date at the Sinking Fund redemption
price thereof.
SECTION 3.06. Effect of Failure to Deliver Officers' Certificate or
Securities. In case of a failure of the Company, at or before the time provided
above, to deliver any Officers' Certificate as may be required by Section 3.05,
together with any Securities of the particular series required by Section 3.05,
the Company shall not be permitted to make any such reduction of the amount of
the Sinking Fund payment with respect to such series payable on such Sinking
Fund payment date.
SECTION 3.07. Manner of Redeeming Securities. The Securities of any
series to be redeemed from time to time through the operation of any Sinking
Fund relating to such series, as in Section 3.04 provided, shall be selected by
the Trustee for redemption in the manner provided in Section 3.02 and notice
thereof shall be given by the Trustee to the Company, and the Company hereby
irrevocably authorizes the Trustee, in the name of and at the expense of the
Company, to give notice on behalf of the Company of the redemption of such
Securities, all in the manner and with the effect in this Article Three
specified, except that, in addition to the matters required to be included in
such notice by Section 3.02, such notice shall also state that the Securities
therein designated for redemption are to be redeemed through operation of such
Sinking Fund. Such Securities shall be so redeemed and paid in accordance with
such notice in the manner and with the effect provided in Sections 3.02 and
3.03.
Notwithstanding the foregoing, if at any time the amount of cash to be
paid into any Sinking Fund with respect to a particular series of Securities on
any next succeeding Sinking
<PAGE> 28
21
Fund payment date for such series, together with any unused balance of any
preceding Sinking Fund payment or payments with respect to such series which
shall not, in any case, include funds held by the Trustee for Securities of such
series which previously have been called for redemption, shall not exceed in the
aggregate $100,000, the Trustee, unless requested by the Company, shall not
select Securities for or give notice of the redemption of Securities through the
operation of the Sinking Fund with respect to such series on the next succeeding
Sinking Fund payment date. Such unused balance of moneys deposited in the
Sinking Fund with respect to a particular series of Securities shall be added to
the next Sinking Fund payment for such series to be made in cash or, at the
request of the Company, shall be applied at any time or from time to time to the
purchase of Securities of such series, by public or private purchase, in the
open market or otherwise.
SECTION 3.08. Sinking Fund Moneys to Be Held as Security During
Continuance of Event of Default; Exceptions. Unless all Securities of any series
then outstanding are to be redeemed, neither the Trustee nor any paying agent
shall redeem any Securities of such series with Sinking Fund moneys if such
person shall at the time have knowledge of the continuance of any Event of
Default with respect to such series, except that where the mailing or
publication of notice of redemption of any such Securities shall theretofore
have been made, the Trustee or any paying agent, if sufficient funds shall have
been deposited with it for such purpose, shall redeem such Securities. However,
the Company itself shall not redeem any such Securities with Sinking Fund moneys
during the continuance of any Event of Default with respect to such series. The
Trustee shall not mail or publish any notice of redemption if it shall at the
time have knowledge of the continuance of any Event of Default with respect to
such series. Except as aforesaid, any moneys in the Sinking Fund with respect to
such series at such time and any moneys thereafter paid into the Sinking Fund
shall during such continuance be held as security for the payment of all
Securities of that series; provided, however, that in case such Event of Default
with respect to such series shall have been waived as permitted by this
Indenture or otherwise cured, such moneys shall thereafter be held and applied
in accordance with the provisions of this Article Three.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payments of Principal of (and Premium, If Any) and
Interest, If Any, on Securities. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and interest, if any, on
Securities of each series at the place, at the time or times and in the manner
provided in the instrument establishing such series and in the Securities of
such series. The interest on the Securities, if any, shall be payable (subject
to the provisions of Section 2.03) only to or upon the written order of the
Holders thereof or, in the case of unregistered Securities with coupons, the
Holders of coupons relating thereto. Any instalment of interest on registered
Securities of any series may at the Company's option be paid by mailing checks
for such interest payable to or upon the written order of the person entitled
thereto pursuant to Section 2.03 to the address of such person as it appears on
the Security Register.
<PAGE> 29
22
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Securities. As long as any of the Securities
of any series remain outstanding, the Company will maintain one or more offices
or agencies in Chicago, Illinois, and at such other locations as the Company may
from time to time designate for any series of Securities, where such Securities
may be presented for registration of transfer and exchange as in this Indenture
provided, where such Securities may be presented for payment and where notices
and demands to or upon the Company in respect of such Securities or of this
Indenture may be served. The Corporate Trust Office shall be such office in
Chicago, Illinois, and the Trustee shall be the agent of the Company in such
city for all of the foregoing purposes unless the Company shall designate and
maintain some other office and agency for such purposes and give the Trustee
written notice of the location thereof. The Company will give to the Trustee
notice of the location of each such office or agency and of any change of
location thereof.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee for any one or more series of Securities, will appoint, in the manner
provided in Section 7.10, a Trustee, so that there shall at all times be a
Trustee with respect to each series of Securities hereunder.
SECTION 4.04. Duties of Paying Agents, etc. (a) The Company shall cause
each paying agent, if any, other than the Trustee, for any series of Securities,
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.04, that:
(1) it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Securities of such series (whether such sums have been paid to it by
the Company or by any other obligor on the Securities of such series)
in trust for the benefit of the Holders of the Securities of such
series;
(2) it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of (or premium, if any) or interest
on the Securities of such series when the same shall be due and
payable; and
(3) it will at any time during the continuance of an Event of
Default with respect to such series of Securities, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held
by it as such agent.
Whenever the Company shall have one or more paying agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on Securities of such series, deposit with
such paying agent or agents a sum sufficient to pay such principal (and premium,
if any) or interest on such Securities so becoming due.
(b) If the Company shall act as its own paying agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on the
<PAGE> 30
23
Securities of such series, set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series a sum sufficient to pay
such principal (and premium, if any) or interest on such Securities so becoming
due. The Company will promptly notify the Trustee of any failure by the Company
to take such action or the failure by any other obligor on the Securities of
such series to make any payment of the principal of (or premium, if any) or
interest on the Securities of such series when the same shall be due and
payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 4.04, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such paying
agent.
(d) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
the provisions of Sections 12.04 and 12.05.
SECTION 4.05. Limitation on Liens. Subject to the provisions of Article
Twelve (to the extent they are applicable to the Securities of any series), the
Company will not, nor will it permit any Restricted Subsidiary to, issue, assume
or guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (hereinafter, "Debt") secured by a mortgage,
security interest, lien, pledge or other encumbrance (hereinafter, "liens") upon
any Principal Property or upon any shares of stock or indebtedness of any
Restricted Subsidiary (whether such Principal Property, shares of stock or
indebtedness are now owned or hereafter acquired) without in any such case
effectively providing concurrently with such issuance, assumption, or guarantee
that the Securities (together with, if the Company so determines, any other
indebtedness or obligation then existing and any other indebtedness or
obligation, thereafter created, ranking equally with the Securities) shall be
secured equally and ratably with (or prior to) such Debt so long as such Debt
shall be so secured, except that the foregoing provisions shall not apply to:
(a) Liens affecting property of a corporation existing at the
time it becomes a Subsidiary or at the time it is merged into or
consolidated with or purchased by the Company or a Subsidiary;
(b) Liens existing at the time of acquisition of the property
affected thereby or incurred to secure payment of all or part of the
purchase price of such property or to secure Debt incurred prior to, at
the time of or within 180 days after the acquisition of such property
for the purpose of financing all or part of the purchase price thereof
(provided such liens are limited to such property and improvements
thereon);
(c) Liens placed within 180 days of completion of construction
of new plants built on property which, in the opinion of the Board of
Directors, was, prior to such construction, substantially unimproved
for the use intended by the Company, to secure all
<PAGE> 31
24
or part of the cost of construction of such plants, or to secure Debt
incurred to provide funds for any such purpose;
(d) Liens which secure indebtedness owing by a Restricted
Subsidiary to the Company or another Restricted Subsidiary;
(e) Liens existing on the date of this Indenture;
(f) Liens arising by reason of mortgages on property owned or
leased by the Company or a Restricted Subsidiary in favor of the United
States of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country or any
political subdivision thereof, or in favor of holders of securities
issued by any such entity, pursuant to any contract or statute
(including, without limitation, mortgages to secure Debt of the
pollution control or industrial revenue bond type) or to secure any
indebtedness incurred or guaranteed for the purpose of financing all or
any part of the purchase price or the cost of construction of the
property subject to such mortgages;
(g) Mechanics', materialmen's, carriers', workmen's, vendors'
or other like liens, arising in the ordinary course of business in
respect of obligations which are not past due or which are being
contested in good faith;
(h) Liens arising by reason of any deposit with, or the giving
of any form of security to (i) any surety company or clerk of any
court, or in escrow, as collateral in connection with, or in lieu of,
any bond or appeal from any judgment or decree against the Company or a
Restricted Subsidiary, or in connection with other proceedings or
actions at law or in equity by or against the Company or a Restricted
Subsidiary, or (ii) any government or governmental department, agency
or instrumentality, which deposit or security is required or permitted
to qualify the Company or a Restricted Subsidiary to conduct business
(or perform any contract with such entities), to maintain
self-insurance, or to obtain the benefit of, or comply with, any law
pertaining to workers' compensation, unemployment insurance, old age
pensions, social security, or similar matters;
(i) Liens existing on property acquired by the Company or a
Restricted Subsidiary through the exercise of rights arising out of
defaults on receivables acquired in the ordinary course of business;
(j) Liens for judgments or awards, so long as the finality of
any such judgment or award is being contested in good faith and
execution thereon is stayed;
(k) Liens for taxes or assessments or governmental charges or
levies not yet past due or delinquent or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established; and any other liens of a nature substantially similar to
those described in this clause (k) which do not, in the opinion of the
Board of Directors of the Company,
<PAGE> 32
25
materially impair the use of such property in the operation of the
business of the Company and its Restricted Subsidiaries taken as a
whole or the value of such property for the purposes of such business;
or
(l) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien
referred to in the foregoing clauses (a) to (k) inclusive or of any
Debt secured thereby, provided that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement, and that
such extended, renewed or replacement lien shall be limited to all or
part of the same property which secured the lien extended, renewed or
replaced (plus improvements on such property).
The covenant contained in this Section will be subject to the provision
for exempted indebtedness in Section 4.07.
SECTION 4.06. Limitation on Sale and Lease-Back. Subject to the
provisions of Article Twelve (to the extent they are applicable to the
Securities of any series), the Company will not, nor will it permit any
Restricted Subsidiary to, enter into any arrangement with any person providing
for the leasing by the Company or any Restricted Subsidiary of any Principal
Property (whether such Principal Property is now owned or hereafter acquired),
except for temporary leases for a term, including any renewal, of not more than
three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries, which Principal Property has been
or is to be sold or transferred by the Company or such Restricted Subsidiary to
such person (hereinafter, a "Sale and Lease-Back Transaction"), unless either
(i) the Company or such Restricted Subsidiary would be entitled, in accordance
with the provisions of Section 4.05 (other than provisions with respect to
exempted indebtedness), to incur Debt secured by a lien on such property without
equally and ratably securing the Securities, or (ii) the Company within 180 days
after the effective date of the Sale and Lease-Back Transaction applies an
amount equal to the Value of such transaction to the voluntary retirement of its
Funded Debt. For the purposes of this Article, "Value" shall mean an amount
equal to the greater of the net proceeds of the sale or transfer of the property
leased pursuant to such Sale and Lease-Back Transaction, or the fair value in
the opinion of the Board of Directors of the leased property at the time of
entering into such Sale and Lease-Back Transaction. For the purposes of this
Article, "Funded Debt" shall mean indebtedness (including Securities) maturing
by the terms thereof more than one year after the original creation thereof.
The covenant contained in this Section will be subject to the provision
for exempted indebtedness in Section 4.07.
SECTION 4.07. Exempted Indebtedness. Notwithstanding the provisions
contained in Sections 4.05 and 4.06, the Company and its Restricted Subsidiaries
may issue or guarantee Debt which would otherwise be subject to the limitation
of Section 4.05, without securing the Securities, or may enter into Sale and
Lease-Back Transactions which would otherwise be subject to the limitation of
Section 4.06, without retiring Funded Debt, or enter into a combination of such
transactions, if the sum of (i) the principal amount of all such debt incurred
<PAGE> 33
26
after the date hereof, and which would otherwise be or have been prohibited by
the limitations of Section 4.05 or 4.06 and (ii) the aggregate Value of all such
Sale and Lease-Back Transactions after the date hereof does not at any such time
exceed 10% of the Consolidated Net Tangible Assets of the Company and its
Consolidated Subsidiaries as shown in the audited consolidated balance sheet
contained in the latest annual report to the stockholders of the Company. For
this purpose, "Consolidated Net Tangible Assets" means the excess over current
liabilities of total assets after deducting goodwill, trade names, trademarks,
patents, unamortized debt discount, unamortized expense incurred in the issuance
of debt, and other like intangibles, as shown on such consolidated balance sheet
prepared in accordance with generally accepted accounting principles.
SECTION 4.08. Statement by Officers as to Default. The Company will
deliver to the Trustee, on or before a date not more than four months after the
end of each of its fiscal years ending after the date hereof during which any
Securities are outstanding, an Officers' Certificate stating that neither of the
signers thereof has any knowledge after due investigation of the existence of
any default by the Company in the performance of any covenant or agreement
contained in Sections 4.05, 4.06, 11.01 and 11.02 or stating that they have
knowledge of the existence of such a default of which the signers have knowledge
and the nature thereof.
SECTION 4.09. Further Instruments and Acts. The Company will, upon
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture, including Sections 4.05 and 4.06.
ARTICLE FIVE
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee with respect to each series of Securities:
(a) not more than 15 days after each Record Date for the
payment of interest, if any, with respect to such series of Securities,
or, if interest shall not be paid with respect to such series at least
as frequently as semi-annually, not later than July 15 and January 15
of each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of such series as of
such Record Date or the immediately preceding June 30 or December 31,
whichever is applicable; and
(b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the date such list is furnished;
<PAGE> 34
27
except that, so long as the Trustee is the Security Registrar with respect to
such series of Securities, no such list need be furnished under this Section
5.01.
SECTION 5.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders (1)
contained in the most recent list furnished to it as provided in Section 5.01
and (2) received by it in the capacity of paying agent or Security Registrar (if
so acting) hereunder.
The Trustee may destroy any list furnished to it with respect to
Securities of any series as provided in Section 5.01 upon receipt of a new list
with respect to such series so furnished.
(b) Holders of any series of Securities may communicate
pursuant to TIA Section 312(b) with other Holders of such series with
respect to their rights under this Indenture or under the Securities of
such series. In complying with such section of the TIA, the Company,
the Trustee, any Security Registrar, and any paying agent shall have
the protection of TIA Section 312(c).
SECTION 5.03. Reports by Company. The Company covenants and agrees to
file with the Trustee, within 15 days after the Company is required to file the
same with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules or regulations prescribe) which the
Company may be required to file with the SEC pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934, as amended. The Company shall also
comply with the other provisions of TIA Section 314(a).
SECTION 5.04. Reports by Trustee. (a) On or before August 15, 1987 and
on or before August 15 in every year thereafter, so long as any Securities of
any series are outstanding hereunder, the Trustee shall transmit to the Holders
of Securities of each such series and to the Company a brief report dated as of
the preceding May 15 which complies with TIA Section 313(a). The Trustee shall
also comply with TIA Section 313(b)(2). Reports to Holders pursuant to this
Section 5.04 shall be transmitted in the manner and to the extent provided in
TIA Section 313(c).
(b) A copy of each such report shall, at the time of such transmission
to such Holders, be filed by the Trustee with each stock exchange upon which the
Securities of such series are listed and also with the SEC. The Company agrees
to notify the Trustee when and as the Securities of any series become listed on
any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
SECTION 6.01. Events of Default. In case one or more of the following
Events of Default (unless it is either inapplicable to a particular series or it
is specifically deleted from or modified
<PAGE> 35
28
in the instrument establishing such series and the form of Security for such
series) shall have occurred and be continuing with respect to any series of
Securities, that is to say:
(a) default in the payment of any instalment of interest upon
any Security of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium,
if any, on) the Securities of such series as and when the same shall
become due and payable either at Stated Maturity, upon redemption (for
any Sinking Fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Securities of such series, or in this Indenture
contained and relating to such series, for a period of 60 days after
the date on which written notice specifying such failure and requiring
the Company to remedy the same shall have been given by registered or
certified mail to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least twenty-five per cent in aggregate
principal amount at Stated Maturity of the Securities of such series at
the time outstanding; or
(d) the Company shall pursuant to or within the meaning of
any Bankruptcy Law:
(1) commence a voluntary case,
(2) consent to the entry of an order for relief
against it in an involuntary case,
(3) consent to the appointment of a Custodian of the
Company or for all or substantially all of its property, or
(4) make a general assignment for the benefit of its
creditors; or
(e) a court of competent jurisdiction shall enter an order or
decree under any Bankruptcy Law that:
(1) is for relief against the Company in an
involuntary case,
(2) appoints a Custodian of the Company or for all or
substantially all of its property, or
(3) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days;
<PAGE> 36
29
then and in each and every such case, so long as such Event of Default with
respect to such series shall not have been remedied or waived, unless the
principal of all Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than twenty-five per cent
in aggregate principal amount at Stated Maturity of the Securities of such
series then outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Holders), may declare the principal (and, in the
case of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) of all the Securities of such
series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if at
any time after the principal of the Securities of such series (or, in the case
of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
instalments of interest, if any, upon all the Securities of such series and the
principal of (and premium, if any, on) any and all Securities of such series
which shall have become due otherwise than by such acceleration (with interest
upon such principal (and premium, if any) and, to the extent that payment of
such interest is enforceable under applicable law, upon overdue instalments of
interest, at the rate borne by the Securities of such series (or, in the case of
Original Issue Discount Securities, at the yield to Stated Maturity) to the date
of such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith, and any and all
defaults under this Indenture, other than the nonpayment of the principal of
Securities of such series which shall have become due by such acceleration,
shall have been remedied - then and in every such case the Holders of a majority
in aggregate principal amount at Stated Maturity of the Securities of such
series then outstanding, by written notice to the Company and to the Trustee,
may waive all defaults 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.
In case the Trustee or any Holders shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holders, then and in
every such case the Company, the Trustee and such Holders shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue as though no
such proceedings had been taken.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. The Company
covenants that (1) in case default shall be made in the payment of any
instalment of interest on any Securities of any series, as and when the same
shall become due and payable, and such default shall have continued for a period
of 30 days, or (2) in case default shall be made in the payment of the principal
of (or premium, if any, on) any Securities of any series when the same shall
have become due and payable, whether at the Stated Maturity of the Securities of
such series or upon redemption (for any Sinking Fund payment or otherwise) or
upon declaration or otherwise - then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the Holders of the Securities of
such series, the whole amount that then shall have become due and payable on all
<PAGE> 37
30
such Securities for principal (and premium, if any) or interest, or both, as the
case may be, with interest upon the overdue principal (and premium, if any) and
(to the extent that payment of such interest is enforceable under applicable
law) upon overdue instalments of interest at the rate borne by the Securities of
such series (or, in the case of Original Issue Discount Securities, at the yield
to Stated Maturity); and, in addition thereto, such further amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of such series and collect in the manner provided by law out of the
property of the Company or other obligor upon the Securities of such series
wherever situated the moneys adjudged or decreed to be payable.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, insolvency, reorganization or other similar judicial proceedings,
relative to the Company, its creditors, or its property, the Trustee
(irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 6.02) shall, if permitted by law, be entitled and
empowered to file and prove a claim or claims for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the Securities
of such series to which the Trustee or the Holders of the Securities of such
series shall be entitled, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and of such
Holders hereunder or on the Securities of such series allowed in such judicial
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of any amount payable to the Trustee for compensation and expenses, including
counsel fees; and any trustee in bankruptcy or receiver is hereby authorized by
each of such Holders to make such payments to the Trustee, and, in the event
that the Trustee shall consent to the making of such payments directly to such
Holders, to pay to the Trustee any amount due to it for compensation and
expenses, including counsel fees, incurred by it to the date of such payment.
Nothing herein contained shall be deemed to authorize or empower the Trustee,
except in accordance with action taken under Article Nine, to consent to or
accept or adopt, on behalf of any Holder, any plan of reorganization or
readjustment of the Company affecting the Securities of any series or the rights
of any Holder thereof, or to authorize or empower the Trustee to vote in respect
of the claim of any such Holder in any such proceedings.
All rights of action and of asserting claims under this Indenture, or
under any Securities of any series, may be enforced by the Trustee without the
possession of any such Securities, or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name and as trustee of an
<PAGE> 38
31
express trust, and any recovery of judgment (except for any amounts payable to
the Trustee pursuant to Section 7.06) shall be for the ratable benefit of the
Holders in respect of which the action was taken.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee, pursuant to Section 6.02 on account of a default
relating to a particular series of Securities, shall be applied in the order
following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the several Securities of such series and coupons
appertaining thereto, if any, and the notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
and reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all sums due the Trustee pursuant to Section 7.06
hereof;
SECOND: In case the principal of the Securities of such series
shall not have become due, to the payment of interest on the Securities
of such series, in the order of the maturity of the instalments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue instalments of interest at
the rate borne by the Securities of such series (or, in the case of
Original Issue Discount Securities, at the yield to Stated Maturity),
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
shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the Securities of such
series for principal (and premium, if any) and interest, with interest
on the overdue principal (and premium, if any) and (to the extent that
such interest has been collected by the Trustee) upon overdue
instalments of interest at the rate borne by the Securities of such
series (or, in the case of Original Issue Discount Securities, at the
yield to Stated Maturity); 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
premium, if any) and interest, without preference or priority of
principal (and premium, if any) over interest, or of interest over
principal (and premium, if any) or of any instalment of interest over
any other instalment of interest, or of any Securities of such series
over any other Securities of such series, ratably to the aggregate of
such principal (and premium, if any) and accrued and unpaid interest;
and
<PAGE> 39
32
FOURTH: The remainder, if any, shall be paid to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Security
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceedings at law or in equity upon
or under or with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of an Event of Default with
respect to Securities of that series and unless the Holders of not less than
twenty-five per cent in aggregate principal amount at Stated Maturity of the
then outstanding Securities of such series shall have made written request upon
the Trustee to institute such action or proceedings in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the cost, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceedings and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 6.06; it being understood and
intended, and being expressly covenanted by the taker and Holder of any Security
of any series with every other such taker and Holder and the Trustee, that no
one or more Holders of such Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of the Holders of any other such Securities or
to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders of
such Securities. For the protection and enforcement of the provisions of this
Section 6.04, each and every Holder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, any
right of any Holder to receive payment of the principal of (and premium, if any)
and interest on any Security on or after the respective due dates expressed in
such Security (including any date fixed for redemption pursuant hereto) or to
institute 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 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default. All powers and remedies given by this Article
Six to the Trustee or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article Six or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders.
<PAGE> 40
33
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
Securities of Any Series to Direct Trustee and to Waive Default. The Holders of
a majority in aggregate principal amount at Stated Maturity of the Securities of
any series at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee with respect
to Securities of such series; provided, however, that such direction shall not
be otherwise than in accordance with law and the provisions of this Indenture,
and that subject to the provisions of Section 7.01 hereof, the Trustee shall
have the right to decline to follow any such direction if the Trustee being
advised by counsel shall determine that the action so directed may not lawfully
be taken, or if the Trustee shall by a responsible officer or officers determine
that the action so directed would involve it in personal liability or would be
unjustly prejudicial to Holders of Securities of such series not taking part in
such direction; and provided further, that nothing in this Indenture contained
shall impair the right of the Trustee in its discretion to take any action
deemed proper by the Trustee and which is not inconsistent with such direction
by such Holders. Prior to the declaration of the maturity of the Securities of
any series as provided in Section 6.01, the Holders of a majority in aggregate
principal amount at Stated Maturity of the Securities of such series at the time
outstanding may on behalf of the Holders of all of the Securities of such series
waive any past default hereunder and its consequences, except a default in the
payment of the principal of (and premium, if any) or interest on any of the
Securities of such series. In case of any such waiver, the Company, the Trustee
and the Holders of the Securities of such series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, But May
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90 days
after the occurrence of a default, give to the Holders of Securities of any
series to which such default relates, in the manner and to the extent provided
in TIA Section 313(c), notice of all defaults known to the Trustee with respect
to such Securities, unless such defaults shall have been cured or waived before
the giving of such notice (the term "default" or "defaults" for the purposes of
this Section 6.07 being hereby defined to be any event or events, as the case
may be, specified in clauses (a), (b), (c), (d) and (e) of Section 6.01, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in clause (c) of Section 6.01); provided
that, except in the case of default in the payment of the principal of (or
premium, if any) or interest on any of the Securities of any series or in the
making of any Sinking Fund payment, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or responsible officers, of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders thereof.
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee. All parties to this Indenture
agree, and each Holder by his acceptance of any Security shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any
<PAGE> 41
34
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.08 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than ten per cent in principal amount at
Stated Maturity of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security, on or after the respective due
dates expressed in such Security (including any date fixed for redemption).
SECTION 6.09. Waiver of Stay or Extension Laws. The Company covenants
and agrees (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities. The Trustee, prior
to the occurrence of an Event of Default with respect to a particular series of
Securities and after the curing or waiving of all Events of Default which may
have occurred with respect to such series, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default with respect to a particular series of Securities has occurred
(which has not been cured or waived), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture relating to such series, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to a particular series of Securities and after the curing or
waiving of all Events of Default which may have occurred with respect
to such series:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set
<PAGE> 42
35
forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for an error of judgment
made in good faith by a responsible officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith relating to
Securities of any series in accordance with the direction of the
Holders of not less than a majority in principal amount at Stated
Maturity of the Securities of such series at the time outstanding
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, with respect to the Securities of such
series under this Indenture.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate security or indemnity against such risk or
liability is not reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided
in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Direction
(unless other evidence in respect thereof is herein specifically
prescribed); and any resolution of the Board of Directors of the
Company shall be evidenced to the Trustee by a Certified Board
Resolution;
(c) the Trustee may consult with counsel and the advice of
such counsel or any opinion of counsel shall be full and complete
authorization and protection in respect
<PAGE> 43
36
of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with such advice or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, approval or other
paper or document, unless requested in writing to do so by the Holders
of a majority in aggregate principal amount at Stated Maturity of
Securities of any series then outstanding; provided, however, that if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is not, in the opinion of the Trustee, reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such costs, expenses or liabilities as a condition to so proceeding;
the reasonable expense of every such investigation shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company upon
demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities of any series. The Trustee represents that
it is duly authorized to execute and deliver this Indenture and perform its
obligations hereunder. The Trustee shall not be accountable for the use or
application by the Company of any of the Securities of any series or of the
proceeds thereof.
SECTION 7.04. Trustee, Paying Agent or Security Registrar May Own
Securities. The Trustee or any paying agent or Security Registrar with respect
to any series of Securities, in its individual or any other capacity, may become
the owner or pledgee of Securities of such series
<PAGE> 44
37
with the same rights it would have if it were not Trustee, paying agent or
Security Registrar with respect to such Securities.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust. Subject
to the provisions of Section 12.04 hereof, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company. So long as no Event of Default with respect to
Securities of any series shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon a Company
Direction.
SECTION 7.06. Compensation and Reimbursement. The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
(which shall not be limited by any provisions of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
agents, attorneys and counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. If any property other than cash shall at any time be
subject to a lien in favor of the Holders, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or by
the supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax liens or other prior liens or encumbrances thereon. The Company
also covenants to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on the
part of the Trustee, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Company under this Section 7.06 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of the Indenture. Such additional indebtedness shall be secured by
a lien, prior to that of the Securities of any series with respect to which the
indebtedness arose, upon all property and funds held or collected by the
Trustee, as such, relating to such series except funds held in Trust for the
payment of principal of (and premium, if any) or interest on Securities of such
series.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof is 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
<PAGE> 45
38
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. Disqualification; Conflicting Interests. The Trustee
shall be subject to TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9); and for the purposes
of this Indenture, with respect to Securities of any series, the provisions of
TIA Section 310(b) relating to "other securities" shall be deemed to include
Securities of each other series and such provisions relating to any "other
indenture or indentures" shall be deemed to include the provisions of this
Indenture relating to Securities of each other series.
SECTION 7.09. Requirements for Eligibility of Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or of any State, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 7.09, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation and Removal of Trustee. (a) The Trustee, or
any trustee or trustees hereafter appointed, may at any time resign as Trustee
with respect to any series of Securities by giving written notice of resignation
to the Company and by giving notice thereof to the Holders of the Securities of
such series in the manner and to the extent provided in TIA Section 313(c). Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor trustee
with respect to the Securities of such series shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Holder who has
been a bona fide Holder of a Security or Securities of the affected series for
at least six months may, subject to the provisions of Section 6.08, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee with respect to the Securities of such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee with respect to the Securities
of such series.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of clause
(i) TIA section 310(b) after written request therefor by the Company or
by any Holder who has
<PAGE> 46
39
been a bona fide Holder of a Security or Securities of the affected
series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to all
Securities of any affected series and appoint a successor trustee thereof by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
6.08, any Holder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee thereof. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee with respect to the
Securities of such series.
(c) The Holders of a majority in aggregate principal amount at Stated
Maturity of the Securities of any series at the time outstanding may at any time
remove the Trustee with respect to the Securities of such series and appoint a
successor trustee therefor by the delivery to the Trustee so removed, to the
successor trustee and to the Company of the evidence provided for in Section
8.01 of the action in that regard taken by such Holders.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee for the Securities of any series pursuant to any of the
provisions of this Section 7.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
SECTION 7.11. Acceptance by Successor to Trustee. (a) No successor
trustee with respect to any series of Securities shall accept appointment as
provided in this Section 7.11 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09.
(b) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
as provided in Section 7.10 an instrument accepting such appointment, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance shall become vested with all the rights, powers, trusts and duties of
the predecessor Trustee with
<PAGE> 47
40
respect to all such Securities; but, on the request of the Company or the
successor trustee, such predecessor Trustee, with like effect as if originally
named as Trustee herein, shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the rights, powers and
trusts of the predecessor Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such predecessor Trustee
hereunder subject, nevertheless, to its lien, if any, provided for in Section
7.06.
(c) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor trustee with respect to the Securities of
the affected series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the predecessor Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee relates,
(2) if the predecessor Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of that or those series as to which the
predecessor Trustee is not resigning shall continue to be vested in the
predecessor Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the predecessor Trustee shall become effective to the extent provided
therein and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to the Securities of that or those
series to which the appointment of such successor trustee relates; but, on
request of the Company or any successor trustee, such predecessor Trustee shall
duly assign, transfer and deliver to such successor trustee all property and
money held by such predecessor Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor trustee
relates.
(d) Upon acceptance of appointment by a successor trustee with respect
to any series of Securities as provided in this Section 7.11, the Company shall
give notice of the succession of such trustee and the address of its Corporate
Trust Office to all Holders of Securities of any such series in the manner and
to the extent provided in TIA Section 313(c). If the Company fails to provide
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be provided at the
expense of the Company.
SECTION 7.12. Successor to Trustee by Merger, Consolidation or
Succession to Business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be
<PAGE> 48
41
qualified under the provisions of Section 7.08, and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of the particular series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee,
and deliver such Securities so authenticated; and in case at that time any of
the Securities of such series shall not have been authenticated, any successor
to the Trustee with respect to the Securities of such series may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificates shall have the
full force which it is anywhere in such Securities or in this Indenture provided
that the certificate of authentication of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities of the particular series in
the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 7.13. Preferential Collection of Claims Against Company. The
Trustee shall be subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
SECTION 7.14. Appointment of Additional and Separate Trustees. Whenever
the Trustee shall deem it necessary or prudent in order to conform to any law of
any jurisdiction, or the Trustee shall be advised by counsel, satisfactory to
it, that it is necessary or prudent in the interest of the Holders of Securities
of any series or in the event that the Trustee shall have been requested to do
so by the Holders of a majority in principal amount at Stated Maturity of the
Securities of any series at the time outstanding, the Trustee and the Company
shall execute and deliver an indenture supplemental hereto and all other
instruments and agreements necessary or proper to constitute another bank or
trust company, or one or more persons appointed by the Company, either to act as
additional trustee or trustees hereunder, jointly with the Trustee, or to act as
separate trustee or trustees hereunder, in any such case with such powers with
respect to the affected series of Securities as may be provided in such
indenture supplemental hereto, and to vest in such bank, trust company or person
as such additional trustee or separate trustee, as the case may be, any
property, title, right or power of the Trustee with respect to the affected
series of Securities deemed necessary or advisable by the Trustee, subject to
the provisions of this Section 7.14 below set forth. In the event the Company
shall not have joined in the execution of such indenture supplemental hereto
within ten days after the receipt of a written request from the Trustee so to
do, or in case an Event of Default with respect to the particular series of
Securities shall occur and be continuing, the Trustee may act under the
foregoing provisions of this Section 7.14 without the concurrence of the
Company; and the Company hereby appoints the Trustee its agent and
attorney-in-fact to act for it under the foregoing provisions of this Section
7.14 in either of such contingencies. The Trustee may execute, deliver and
perform any deed, conveyance, assignment or other instrument in writing as may
be required by any additional trustee or separate trustee for more fully and
certainly vesting in and confirming to it any property, title, right or powers
with respect to the affected series of Securities conveyed or
<PAGE> 49
42
conferred to or upon such additional trustee or separate trustee, and the
Company shall, upon the Trustee's request, join therein and execute, acknowledge
and deliver the same; and the Company hereby makes, constitutes and appoints the
Trustee its agent and attorney-in-fact for it and in its name, place and stead
to execute, acknowledge and deliver any such deed, conveyance, assignment or
other instrument with respect to the affected series of Securities in the event
that the Company shall not itself execute and deliver the same within ten days
after receipt by it of such request so to do. Any supplemental indenture
executed pursuant to the provisions of this Section 7.14 shall conform to the
provisions of the Trust Indenture Act of 1939 as in effect as of the date of
such supplemental indenture.
Every additional trustee and separate trustee hereunder shall, to the
extent permitted by law, be appointed and act, and the Trustee shall act with
respect to a particular series of Securities, subject to the following
provisions and conditions:
(1) the Securities of such series shall be authenticated by
the Trustee and all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody, investment and
payment of moneys, shall be exercised solely by the Trustee;
(2) all other rights, powers, duties and obligations with
respect to the Securities of such series conferred or imposed upon the
Trustee and such additional trustee or separate trustee or any of them
shall be conferred or imposed upon and exercised or performed by the
Trustee and such additional trustee or trustees and separate trustee or
trustees jointly, except to the extent that, under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations with
respect to the Securities of such series shall be exercised and
performed by such additional trustee or trustees or separate trustee or
trustees;
(3) no power hereby given to, or with respect to which it is
hereby provided may be exercised by, any such additional trustee or
separate trustee with respect to a particular series of Securities
shall be exercised hereunder by such additional trustee or separate
trustee except with the consent of the Trustee; and
(4) no trustee with respect to a particular series of
Securities hereunder shall be personally liable by reason of any act or
omission of any other trustee with respect to such series of Securities
hereunder.
If at any time the Trustee shall deem it no longer necessary or prudent in order
to conform to any such law or shall be advised by counsel that it is no longer
so necessary or prudent in the interest of the Holders of Securities of any
series or in the event that the Trustee shall have been requested to do so in
writing by the Holders of a majority in principal amount at Stated Maturity of
the Securities of such series at the time outstanding, the Trustee and the
Company shall execute and deliver an indenture supplemental hereto and all other
instruments and agreements necessary or proper to remove any additional trustee
or separate trustee with respect to such series. In the event that the Company
shall not have joined in the execution of such indenture
<PAGE> 50
43
supplemental hereto, instruments and agreements, the Trustee may act on behalf
of the Company to the same extent provided above.
Any additional trustee or separate trustee with respect to any series
of Securities may at any time by an instrument in writing constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent
which may be authorized by law, to do all acts and things and exercise all
discretions which it is authorized or permitted to do or exercise with respect
to such series, for and in its behalf and in its name. In case any such
additional trustee or separate trustee shall die, become incapable of acting,
resign or be removed, all the assets, property, rights, powers, trusts, duties
and obligations of such additional trustee or separate trustee with respect to
such series, as the case may be, so far as permitted by law, shall vest in and
be exercised by the Trustee, without the appointment of a new successor to such
additional trustee or separate trustee unless and until a successor with respect
to such series is appointed in the manner hereinbefore provided.
Any request, approval or consent in writing by the Trustee to any
additional trustee or separate trustee of any series of Securities shall be
sufficient warrant to such additional trustee or separate trustee, as the case
may be, to take such action with respect to the particular series of Securities
as may be so requested, approved or consented to.
Each additional trustee and separate trustee appointed pursuant to this
Section 7.14 shall be subject to, and shall have the benefit of, Articles Six,
Seven (other than Section 7.09) and Eight hereof and the following Sections of
this Indenture shall be specifically applicable to each additional trustee and
separate trustee: 5.04(a) (except to the extent that reference therein is made
to its eligibility under Section 7.09) and (b), 6.02, 6.07, 7.01, 7.08 and 7.13;
provided, however, that no resignation of an additional or separate trustee
pursuant to Section 7.10 hereof shall be conditioned in any sense whatever upon
the appointment of a successor to such trustee.
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 8.01. Evidence of Action by Holders. Whenever in this Indenture
it is provided that the Holders of a specified percentage in aggregate principal
amount at Stated Maturity of the Securities of any series may take any action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Holders in person or by agent or
proxy appointed in writing, or (b) by the record of such Holders voting in favor
thereof at any meeting of such Holders duly called and held in accordance with
the provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Holders.
<PAGE> 51
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SECTION 8.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of
the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
The ownership of a registered Security shall be proved by the Security
Register relating to the series or by a certificate of the Security Registrar.
The ownership of an unregistered Security or any coupon attached to
such Security at its issuance shall be proved by the production of such Security
or coupon, or, with respect to unregistered Securities only, by a certificate
executed by any trust company, bank, broker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such person had on deposit with such
depositary, or exhibited to it, the Securities therein described; or such facts
may be proved by the certificate or affidavit of the person holding such
Security, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
unregistered Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Security is produced, (2)
such Security is produced by some other person or (3) such Security is no longer
outstanding. The amount of unregistered Securities held by any person may also
be proved in any other manner which the Trustee deems sufficient.
The Trustee may require such additional proof of any matter referred to
in this Section 8.02 as it shall deem necessary.
The record of any meeting of Holders shall be proved in the manner
provided in Section 9.06.
SECTION 8.03. Who May Be Deemed Owner of Securities. Prior to due
presentment for registration of transfer of a registered Security of any series,
the Company, the Trustee, any paying agent and any Security Registrar may deem
and treat the person in whose name such Security shall be registered, or, in the
case of unregistered Securities, the bearer thereof or the owner thereof
determined pursuant to Section 8.02, as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon made by anyone) for the purpose of
receiving payment of or on account of the principal of (and premium, if any) and
interest on such Security and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 8.04. Securities Owned by Company or Controlled or Controlling
Companies Disregarded for Certain Purposes. In determining whether the Holders
of the requisite aggregate principal amount at Stated Maturity of Securities of
any series have concurred in any
<PAGE> 52
45
direction, consent or waiver under this Indenture, Securities of such series
which are owned by the Company or any other obligor on the Securities of such
series or by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on
the Securities of such series shall be disregarded and deemed not to be
outstanding for the purposes of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities of such series which the
Trustee knows are so owned shall be so disregarded. Securities of such series so
owned which have been pledged in good faith may be regarded as outstanding for
the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Securities and that
the pledgee is not the Company or any other obligor on the Securities of such
series or a person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In
the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection for the Trustee.
SECTION 8.05. Instruments Executed by Holders Bind Future Holders. At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount at Stated Maturity of the Securities of any series
specified in this Indenture in connection with such action, any Holder of a
Security of such series which is shown by the evidence to be included in the
Securities of the particular series the Holders of which have consented to such
action may, by filing written notice with the Trustee at its Corporate Trust
Office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid, any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security, and of any Security issued
upon registration of transfer thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Security or such other Security. Any action taken by the Holders of the
percentage in aggregate principal amount at Stated Maturity of the Securities of
any series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all such
Securities.
ARTICLE NINE
HOLDERS' MEETINGS AND CONSENTS
SECTION 9.01. Purposes for Which Meeting May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to the provisions of this Article Nine for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders of Securities of such series pursuant
to any of the provisions of Article Six;
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(2) to remove the Trustee and appoint a successor trustee with
respect to Securities of such series pursuant to the provisions of
Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount at
Stated Maturity of Securities of such series under any other provision
of this Indenture or under applicable law.
SECTION 9.02. Manner of Calling Meetings. The Trustee may at any time
call a meeting of Holders of Securities of any series to take any action
specified in Section 9.01, to be held at such time and at such place in Chicago,
Illinois, or at such other location as the Trustee shall determine. With respect
to registered Securities of any series, notice of every such meeting, setting
forth the time and the place of such meeting, and in general terms the action
proposed to be taken at such meeting, shall be mailed to such Holders at their
addresses as they shall appear on the Security Register with respect to such
Securities. With respect to unregistered Securities of any series, notice of
every such meeting shall be published in an authorized newspaper on two separate
days. Such notice shall be provided not less than 20 nor more than 120 days
prior to the date fixed for the meeting.
SECTION 9.03. Call of Meetings by Company or Holders. In case at any
time the Company, pursuant to a Certified Board Resolution, or the Holders of at
least ten percent in aggregate principal amount at Stated Maturity of Securities
of any series then outstanding, shall have requested the Trustee to call a
meeting of Holders of Securities of such series to take any action authorized in
Section 9.01 by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have provided the
notice of such meeting within 20 days after receipt of such request, then the
Company or the Holders of such Securities in the amount above specified may
determine the time and the place in Chicago, Illinois, for such meeting and may
call such meeting by providing notice thereof as provided in Section 9.02.
SECTION 9.04. Who May Attend and Vote at Meetings. To be entitled to
vote at any meeting of Holders of a particular series of Securities, a person
shall (a) be a Holder of one or more Securities of such series or (b) be a
person appointed by an instrument in writing as proxy by a Holder of one or more
Securities of such series. The only persons who shall be entitled to be present
or to speak at any meeting of Holders of a particular series of Securities shall
be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 9.05. Regulations May Be Made by Trustee. Notwithstanding any
other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of
a particular series, in regard to proof of the holding of Securities of such
series and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
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certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem necessary. Except as
otherwise permitted or required by any such regulations, the holding of
Securities of such series shall be proved in the manner specified in Section
8.02 and the appointment of any proxy shall be proved in the manner specified in
Section 8.02.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 9.03, in which case the Company or
such Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting may be elected by vote of the Holders of a majority in principal
amount at Stated Maturity of Securities of the particular series represented at
the meeting and entitled to vote.
Subject to the provisions of Section 8.04, at any meeting each Holder
of Securities of the particular series or proxy entitled to vote shall have one
vote for each $1,000 principal amount at Stated Maturity of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security of such series challenged
as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities of such series held by him or instruments in writing as
aforesaid duly designating him as the person to vote on behalf of other Holders
of Securities of the particular series. At any meeting of Holders duly called
pursuant to the provisions of Section 9.02 or Section 9.03 the presence of
persons holding or representing Securities of the particular series in an
aggregate principal amount at Stated Maturity sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum be present, the meeting may be adjourned from
time to time by the Holders of a majority in principal amount at Stated Maturity
of the Securities of such series represented at the meeting and entitled to
vote, and the meeting may be held as so adjourned without further notice.
SECTION 9.06. Manner of Voting at Meetings and Record to Be Kept. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders or proxies entitled to vote. The chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 9.02. The record shall be signed and verified by the
affidavits of the chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
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Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.07. Written Consent in Lieu of Meetings. The written
authorization or consent of the requisite percentage herein provided of Holders
of Securities of any series entitled to vote at any meeting of Holders of
Securities of a particular series, evidenced as provided in Article Eight and
filed with the Trustee, shall be effective in lieu of a meeting of such Holders
with respect to any matter provided for in this Article Nine.
SECTION 9.08. No Delay of Rights by Meeting. Nothing in this Article
Nine contained shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Holders of Securities of any series, or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders of Securities of such series under any of the
provisions of this Indenture or of the Securities of such series.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Purposes for Which Supplemental Indentures May Be
Entered into Without Consent of Holders. The Company, when authorized by a
resolution of its Board of Directors, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as then in
effect) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Eleven;
(b) to appoint one or more additional or separate trustees to
act under this Indenture in the manner and to the extent contemplated
by Section 7.14;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of
the Holders of Securities of any or all series as its Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Securities of such series, and to make the occurrence,
or the occurrence and continuance, of a default of any such additional
covenants, restrictions, conditions or provisions a default or an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth with respect to
Securities of such series; provided, however, that in respect of any
such additional covenant, restriction, condition or provision with
respect to Securities of such series, such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may
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provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount at
Stated Maturity of the Securities of such series to waive such default;
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision;
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; to convey, transfer, assign, mortgage
or pledge any property to or with the Trustee; or to make such other
provisions in regard to matters or questions arising under this
Indenture as shall not adversely affect the interests of Holders of
Securities of any series;
(f) to modify, amend or supplement this indenture to comply
with the provisions of Sections 4.05 and 11.01;
(g) to provide for the issuance of unregistered Securities, or
for the exchangeability of registered Securities of any series with
unregistered Securities of a series issued hereunder, or vice versa,
and to make all appropriate changes for such purpose;
(h) to provide for the issuance under this Indenture of
Securities of a series having any form or terms contemplated by
Sections 2.01 and 2.02; and
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.14.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
10.01 may be executed by the Company and the Trustee without the consent of the
Holders of any Securities of any series at the time outstanding, notwithstanding
any of the provisions of Section 10.02.
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SECTION 10.02. Modification of Indenture with Consent of Holders of a
Majority in Principal Amount of Securities. With the consent (evidenced as
provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount at Stated Maturity of the Securities of any series at
the time outstanding, the Company, when authorized by a resolution of its Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto with respect to Securities of the
particular series (which shall conform to the provisions of the Trust Indenture
Act of 1939 as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture relating to such series of Securities or of
modifying in any manner the rights of the Holders of Securities of the
particular series; provided, however, that no such supplemental indenture shall
(i) extend the Stated Maturity of any Security, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of any interest
thereon, or reduce any premium payable upon the redemption thereof, or reduce
the amount of an Original Issue Discount Security that would be due and payable
upon a declaration of acceleration of Stated Maturity thereof pursuant to
Section 6.01, or change the currency in which any Security is payable, without
the consent of the Holder of each Security so affected, or (ii) reduce the
aforesaid majority in aggregate principal amount of Securities of any series,
the consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of all Securities of each affected
series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any series not so affected.
Upon the request of the Company, accompanied by a Certified Board
Resolution authorizing the execution of any such supplemental indenture relating
to Securities of a particular series, and upon the filing with the Trustee of
evidence of the consent of Holders of Securities of the particular series as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the Holders of Securities of a particular
series to approve under this Section 10.02 the particular form of any proposed
supplemental indenture with respect to such series of Securities, but it shall
be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 10.02, the
Company shall mail a notice thereof by first-class mail to the Holders of
registered Securities of each series affected thereby at their addresses as they
shall appear on the Security Register for such Securities, or, in the case of
unregistered Securities, shall give notice in the manner and to the extent
provided in TIA Section 313(c), setting forth in general terms the substance of
such supplemental indenture. Any
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failure of the Company to provide such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.03. Effect of Supplemental Indentures. Upon the execution
and delivery of any supplemental indenture with respect to any series of
Securities pursuant to the provisions of this Article Ten, this Indenture shall
be and be deemed to be modified and amended with respect to the affected series
of Securities in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of Securities of the series affected shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
regard an Opinion of Counsel as conclusive evidence that any such supplemental
indenture with respect to any series of Securities complies with the provisions
of this Article Ten.
SECTION 10.04. Securities May Bear Notation of Changes by Supplemental
Indentures. Securities authenticated and delivered after the execution, pursuant
to the provisions of this Article Ten, of any supplemental indenture with
respect to any series of Securities may, and shall if required by the Trustee,
bear a notation in the form approved by the Trustee as to any matter provided
for in such supplemental indenture. New Securities of the affected series so
modified as to conform, in the opinion of the Trustee and the Board of Directors
of the Company, to any modification of this Indenture contained in any such
supplemental indenture with respect to such series of Securities may be prepared
by the Company, authenticated by the Trustee and delivered in exchange for the
Securities of the particular series then outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
SECTION 11.01. Company May Consolidate, etc., on Certain Terms. Subject
to the provisions of Section 11.02, nothing contained in this Indenture or in
any of the Securities shall prevent any consolidation or merger of the Company
with or into any other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance or lease of the property of the Company substantially as an
entirety to any other corporation or entity (whether or not affiliated with the
Company) authorized to acquire and operate the same; provided, however, and the
Company hereby covenants and agrees, subject to the provisions of Article Twelve
(to the extent they are applicable to the Securities of any series), that upon
any such consolidation, merger, sale, conveyance or lease, other than a merger
in which the Company is the continuing corporation, the due and punctual payment
of the principal of and interest on all of the Securities, according to their
tenor, and the
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due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee, executed
and delivered to the Trustee by the corporation (if other than the Company)
formed by such consolidation, or into which the Company shall have been merged,
or by the corporation or entity which shall have acquired or leased such
property.
SECTION 11.02. Securities to Be Secured in Certain Events. Subject to
the provisions of Article Twelve (to the extent they are applicable to the
Securities of any series), if, upon any consolidation, merger, sale, conveyance
or lease referred to in Section 11.01, or upon any consolidation or merger of
any Restricted Subsidiary, or upon any sale, conveyance or lease of the property
of any Restricted Subsidiary substantially as an entirety to any other
corporation or entity, any Principal Property of the Company or of any
Restricted Subsidiary or any shares of stock or indebtedness of any Restricted
Subsidiary which is owned immediately after such consolidation, merger, sale,
conveyance or lease by the Company or a Restricted Subsidiary or a successor to
the Company pursuant to Sections 11.01 and 11.03 would thereupon become subject
to any mortgage, security interest, pledge, lien or encumbrance (other than a
mortgage, security interest, pledge, lien or encumbrance in favor of the
Company, a Restricted Subsidiary or any such successor), the Company, prior to
or concurrently with such consolidation, merger, sale, conveyance or lease, will
effectively provide that the Securities shall be secured (equally and ratably
with, if the Company shall determine, any other indebtedness of or guaranteed by
the Company or a Restricted Subsidiary ranking equally with the Securities) by a
direct lien on such Principal Property, shares of stock or indebtedness, prior
to all liens other than any theretofore existing thereon, so long as such
Principal Property, shares of stock or indebtedness shall be subject to such
mortgage, security interest, pledge, lien or encumbrance.
SECTION 11.03. Successor Corporation to Be Substituted. In case of any
such consolidation, merger, sale, conveyance or lease referred to in Section
11.01 and upon the assumption by the successor corporation or entity, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of and
interest on all of the Securities and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Company,
such successor corporation or entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as a party. Such
successor corporation or entity thereupon may cause to be signed, and may issue
either in its own name or in the name of Illinois Tool Works Inc. any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor corporation or entity instead of the Company and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation or entity
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof. In the
event of
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any such sale or conveyance, but not any such lease, the Company or any
successor corporation or entity which shall theretofore have become such in the
manner described in this Article Eleven shall be discharged from all obligations
and covenants under this Indenture and the Securities and may be dissolved and
liquidated.
In case of any such consolidation, merger, sale, conveyance or lease
referred to in Section 11.01, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
SECTION 11.04. Opinion of Counsel to Be Given Trustee. The Trustee,
subject to Sections 7.01 and 7.02, shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that any such
consolidation, merger, sale, conveyance or lease and any such assumption
complies with the provisions of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Satisfaction and Discharge of Indenture. If at any time
(a) the Company shall have delivered to the Trustee for cancellation all
Securities of any series theretofore authenticated and delivered (other than
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.07 or Securities for whose
payment money has theretofore been deposited in trust and thereafter repaid to
the Company as provided in Section 12.05), or (b) all Securities of any series
not theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee as trust funds the entire amount sufficient to pay at
Stated Maturity or upon redemption all such Securities not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due at Stated Maturity or on such redemption date, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect (except with respect to the right of Holders to
register the transfer of, or exchange, registered Securities, which right shall
survive) and the Trustee, on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel as required by Section 14.05 and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee
under Section 7.06 shall survive.
SECTION 12.02. Defeasance and Discharge of Securities or Certain
Obligations. If this Section 12.02 is specified, as contemplated by Section
2.01, to be applicable to Securities of any series, then notwithstanding Section
12.01:
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(a) The Company shall be deemed to have paid and discharged
the entire indebtedness on all the Outstanding Securities of that
series, the provisions of this Indenture as it relates to such
Outstanding Securities (except as to (i) the rights of Holders of
Securities to receive, from the trust funds described in subparagraph
(1) below, payment of the principal of (and premium, if any) and any
instalment of principal of (and premium, if any) or interest on such
Securities on the Stated Maturity of such principal or instalment of
principal or interest or any mandatory sinking fund payments or
analogous payments applicable to the Securities of that series on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities, (ii) the Company's
obligations with respect to such Securities under Sections 2.05, 2.07,
4.02, 4.04, 5.01, 7.06, 7.10, 7.11, 12.02 and Article 3 of this
Indenture, so long as any principal of (and premium, if any) or
interest on such Securities remains unpaid and, thereafter, only the
Company's rights and obligations under Sections 4.04 and 7.06, and
(iii) the rights, powers, trusts, duties and immunities of the Trustee
with respect to such series) shall no longer be in effect, and the
Trustee, at the expense of the Company, shall, upon a Company
Direction, execute proper instruments acknowledging the same, provided
that the following conditions have been satisfied:
(1) With reference to this Section 12.02(a), the
Company has deposited or caused to be deposited with the
Trustee irrevocably (irrespective of whether the conditions in
subparagraphs (2), (3), (4) or (5) below have been satisfied),
but subject to the provisions of Section 12.02(c) and the last
paragraph of Section 6.03), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series,
(A) money in an amount, or (B) Government Obligations which,
through the payment of interest and principal in respect
thereof in accordance with their terms, without consideration
of any reinvestment thereof, will provide not later than the
opening of business on the due date of any payment referred to
in clause (i) or (ii) of this subparagraph (1) money in an
amount, or (C) a combination thereof, sufficient, after
payment of all taxes in respect thereof payable by the
Trustee, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge (i) the principal of (and premium, if any) and each
instalment of principal (and premium, if any) and interest on
the Outstanding Securities of that series on the Stated
Maturity of such principal or instalment of principal or
interest or any date fixed for redemption of such Outstanding
Securities and (ii) any mandatory sinking fund payments or
analogous payments applicable to Securities of such series on
the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such
Securities;
(2) the Company has paid or caused to be paid all
other sums payable in respect of such Securities, and such
payment and the deposit set forth in subparagraph (1) above
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;
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(3) no Event of Default or event which with the
giving of notice or lapse of time, or both, would become an
Event of Default with respect to the Securities of that series
shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 6.01(d) or
Section 6.01(e) or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under
Section 6.01(d) or Section 6.01(e) shall have occurred and be
continuing on the 91st day after such date;
(4) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling to the effect that Holders of the Securities
of that series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income
tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent in this Indenture provided for
relating to the defeasance and discharge of the entire
indebtedness on all Outstanding Securities of any such series
as contemplated by this Section 12.02(a) have been complied
with.
(b) The Company may omit to comply with any term, provision or
condition set forth in Sections 4.05, 4.06, 4.07 and Article Eleven,
and Section 6.01(c) with respect to Sections 4.05, 4.06, 4.07 and
Article Eleven shall be deemed not to be an Event of Default, in each
case with respect to the Securities of that series, provided that the
following conditions have been satisfied:
(1) with reference to this Section 12.02(b), the
Company has deposited or caused to be deposited with the
Trustee irrevocably (irrespective of whether the conditions in
subparagraphs (2), (3), (4), (5) and (6) below have been
satisfied, but subject to the provisions of Section 12.02(c)
and the last paragraph of Section 6.03), as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of
that series, (A) money in an amount, or (B) Government
Obligations through the payment of interest and principal in
respect thereof in accordance with their terms, without
consideration of any reinvestment thereof, will provide not
later than the opening of business on the due date of any
payment referred to in clause (i) or (ii) of this subparagraph
(1) money in an amount, or (C) a combination thereof,
sufficient, after payment of all taxes in respect thereof
payable by the Trustee, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge (i) the principal of (and
premium, if any) and each instalment of principal (and
premium, if any)
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and interest on the Outstanding Securities of that series on
the Stated Maturity of such principal or instalment of
principal or interest or any date fixed for redemption of such
Outstanding Securities and (ii) any mandatory sinking fund
payments or analogous payments applicable to Securities of
such series on the day on which such payments are due and in
accordance with the terms of this Indenture and of such
Securities;
(2) such deposit shall not cause the Trustee with
respect to the Securities of that series to have a conflicting
interest for purposes of the Trust Indenture Act of 1939 with
respect to the Securities of any series;
(3) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a
party or by which it is bound;
(4) no Event of Default or event which with the
giving of notice or lapse of time, or both, would become an
Event of Default with respect to the Securities of that series
shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 6.01(d) or
Section 6.01(e) or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under
Section 6.01(d) or Section 6.01(e) shall have occurred and be
continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the
Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be
subject to federal income tax on the same amount and in the
same manner and at the same times, as would have been the case
if such deposit and defeasance had not occurred; and
(6) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent in this Indenture provided for
relating to the defeasance contemplated by this Section
12.02(b) have been complied with.
(c) The Trustee shall deliver or pay to the Company from time
to time upon a Company Direction any money or Government Obligations
held by it as provided in this Section 12.02 which, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been required to
be deposited for the purpose for which such money or Government
Obligations were deposited or received.
SECTION 12.03. Application by Trustee of Funds Deposited for Payment of
Securities. All moneys with respect to a particular series of Securities
deposited with the Trustee pursuant to
<PAGE> 64
57
Section 12.01 or Section 12.02 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including, except in the
case of Section 12.02(a), the Company acting as its own paying agent), to the
Holders of Securities of such series for the payment or redemption of which such
moneys have been deposited with the Trustee, of all sums due and to become due
thereon for principal (and premium, if any) and interest.
SECTION 12.04. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture, all moneys then held by
any paying agent (other than the Trustee, if the Trustee is serving as a paying
agent) under the provisions of this Indenture shall, upon demand of the Company,
be repaid to it or paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys.
SECTION 12.05. Repayment of Moneys Held by Trustee. Any moneys
deposited with the Trustee or any paying agent for the payment of the principal
(and premium, if any) of or interest on any Securities of any series and not
applied but remaining unclaimed by the Holders of Securities of that series for
two years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have become due and payable, shall be repaid
to the Company by the Trustee or such paying agent on demand; and the Holders of
any of the Securities of that series entitled to receive such payment shall
thereafter look only to the Company for the payment thereof and all liability of
the Trustee or such paying agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once a week for two successive weeks (in each case on any day of
the week) in an authorized newspaper, a notice that such moneys have not been so
applied and that after a date named therein any unclaimed balance of said moneys
then remaining will be returned to the Company.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 13.01. Incorporators, Stockholders, Officers, Directors and
Employees of Company Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer, director or employee, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers, directors or employees, as such, of the Company or of
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in
<PAGE> 65
58
any of the Securities or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution and delivery of this Indenture and
the issue of Securities hereunder.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 14.02. Acts of Board, Committee or Officer of Successor
Corporation Valid. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
that time be the successor of the Company.
SECTION 14.03. Required Notices or Demands. Except as provided in
Section 6.01(c) and (d), any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
any Holders of Securities of any series to or on the Company may be given or
served by being deposited postage prepaid in a post office letter box in the
United States addressed (until another address is filed by the Company with the
Trustee), as follows: Illinois Tool Works Inc., 8501 West Higgins Road, Chicago,
Illinois 60631, to the attention of the Secretary. Any notice, direction,
request or demand by the Company or by any Holder to or upon the Trustee may be
given or made, for all purposes, by being deposited postage prepaid in a post
office letter box in the United States addressed to the Corporate Trust Office.
Any notice required or permitted to be mailed to a Holder of Securities of any
series by the Company or the Trustee pursuant to the provisions of this
Indenture shall be deemed to be properly mailed by being deposited postage
prepaid in a post office letter box in the United States addressed to such
Holder at the address of such Holder as shown on the Security Register for the
particular series of Securities. Any notice required or permitted to be given to
a Holder of unregistered Securities of any series shall be deemed to be properly
given if such notice is published in an authorized newspaper on two separate
days.
SECTION 14.04. Indenture and Securities to Be Construed in Accordance
with the Laws of the State of Illinois. This Indenture and each Security shall
be deemed to be a contract made under the laws of the State of Illinois, and for
all purposes shall be governed by and construed in accordance with the laws of
such State. The descriptive headings of the Articles and Sections of
<PAGE> 66
59
this Indenture are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
SECTION 14.05. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the Company. Upon any application or
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of any such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion, as the
case may be, need be furnished.
Except as otherwise provided in this Indenture, each certificate or
opinion provided for in this Indenture and delivered to the Trustee with respect
to compliance with a condition or covenant provided for in this Indenture shall
include: (1) a statement that the person making such certificate or opinion has
read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
SECTION 14.06. Payments Due on Holidays. In any case where the date of
maturity of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a business day, then payment of interest
or principal (and premium, if any) need not be made on such date, but may be
made on the next succeeding business day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
SECTION 14.07. Provisions Required by Trust Indenture Act of 1939 to
Control. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 14.08. Indenture May be Executed in Counterparts. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
SECTION 14.09. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
<PAGE> 67
60
The Trustee hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, ILLINOIS TOOL WORKS INC. and THE FIRST NATIONAL
BANK OF CHICAGO have caused this Indenture to be duly executed, and their
respective corporate seals to be affixed and attested, all as of the day and
year first above written.
ILLINOIS TOOL WORKS INC.
[CORPORATE SEAL] By /s/ DAVID B. SMITH
--------------------------------
Vice President
Attest:
/s/ ARTHUR M. WRIGHT
- ----------------------------
Secretary
THE FIRST NATIONAL BANK OF CHICAGO
[CORPORATE SEAL] By /s/ J. R. GRIMES
-------------------------------
Vice President
Attest:
/s/ J. G. FINLEY
- ----------------------------
Assistant Secretary
<PAGE> 68
61
STATE OF ILLINOIS
ss.:
COUNTY OF COOK
On this 12th day of November, 1986, before me personally came DAVID B.
SMITH to me known, who, being by me duly sworn, did depose and say that he
resides in Cook County, Illinois; that he is Vice President of ILLINOIS TOOL
WORKS INC., one of the parties described in and which executed the above
instrument, and that he signed his name thereto by authority of the Board of
Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand the day and year in
this certificate first above written.
/s/ VIVIAN B. MERTES
--------------------------
Notary Public
STATE OF ILLINOIS
ss.:
COUNTY OF COOK
On this 13th day of November, 1986, before me personally came J. R.
GRIMES to me known, who, being by me duly sworn, did depose and say that he
resides in Chicago, Illinois; that he is Vice President of THE FIRST NATIONAL
BANK OF CHICAGO, one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to the instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said Corporation, and that he signed his
name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand the day and year in
this certificate first above written.
/s/ M. RUSH
--------------------------
Notary Public
<PAGE> 1
EXHIBIT 4.2
- --------------------------------------------------------------------------------
ILLINOIS TOOL WORKS INC.
AND
HARRIS TRUST AND SAVINGS BANK,
as Trustee
_________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 1, 1990
_________________
Amending Indenture dated as of November 1, 1986
- --------------------------------------------------------------------------------
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of the lst day of May, 1990, between
Illinois Tool Works Inc., a corporation incorporated under the laws of Delaware
(the "Company"), and Harris Trust and Savings Bank, an Illinois banking
corporation ("Harris" or the "Trustee").
WHEREAS, the Company and The First National Bank of Chicago ("First
National"), as trustee, entered into an Indenture, dated as of the lst day of
November, 1986 (the "Indenture"), providing for the creation, execution,
authentication and delivery of certain Securities of the Company;
WHEREAS, the Company, First National and Harris entered into an Agreement
of Resignation of Trustee and Appointment of Successor, dated January 12, 1990,
pursuant to which First National resigned as trustee, the Company appointed
Harris as Trustee and Harris accepted such appointment under the Indenture;
WHEREAS, the Company has requested the Trustee to join with it in the
execution and delivery of this First Supplemental Indenture in order to
supplement and amend the Indenture, by amending and adding certain provisions
thereof, to permit the Company to require, if it shall so elect, that the
Securities of any series be issued, in whole or in part, in the form of one or
more global securities and to make certain other changes;
WHEREAS, Section 10.01 of the Indenture provides, among other things, that
the Company, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental to the Indenture for the purpose, inter alia, of making
additional provisions in regard to matters or questions arising thereunder as
shall not adversely affect the interests of Holders of Securities of any series;
<PAGE> 3
WHEREAS, the Company and the Trustee desire to enter into this First
Supplemental Indenture for the purposes set forth in Section 10.01 of the
Indenture as referred to above; and
WHEREAS, all acts and things necessary to constitute this First
Supplemental Indenture a valid, binding and legal instrument of the Company have
been done and performed by the Company, and the execution and delivery of this
First Supplemental Indenture have in all respects been duly authorized by the
Company, and the Company, in the exercise of its vested legal right and power,
executes this First Supplemental Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
In consideration of the premises and the covenants herein contained and the
purchase and acceptance of the Securities issued hereunder by the Holders
thereof, and for other valuable consideration, the receipt and adequacy of which
are acknowledged, the Company covenants and agrees with the Trustee, for the
equal and proportionate benefit of the Holders from time to time of the
Securities, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
A. Relation to Indenture. This First Supplemental Indenture constitutes
an integral part of the Indenture.
B. Certain Terms. For all purposes of this First Supplemental Indenture:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture; and
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of the
Indenture.
2
<PAGE> 4
ARTICLE TWO
MODIFICATIONS OF THE INDENTURE
A. Amendment of Article One. Article One of the Indenture is amended as
follows:
(1) Section 1.01 is amended to add new definitions, in the appropriate
alphabetical sequence, as follows:
"Depositary:
The term 'Depositary' means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Global Securities, the person designated as Depositary by the Company
pursuant to Section 2.01 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 Securities of that
series.
"Global Security:
The term 'Global Security' means a Security evidencing all or part of a
series of Securities issued to, and registered in the name of, the
Depositary for such series (or its nominee) in accordance with Section
2.03.
(2) The definition of "authorized newspaper" in Section 1.01 is
amended by adding the words "or official language of the country of
publication" after the words "English language" and by deleting the words
"Chicago, Illinois" and inserting in lieu thereof the words "the place or
places of publication" in the first sentence of such definition.
(3) The definition of "business day" in Section 1.01 is amended by
adding at the end of the sentence the words "or, with reference to any
Securities of any series other than the 8 3/8% Notes Due November 1, 1993,
as set forth in the instrument establishing the series and in the
Securities of such series."
3
<PAGE> 5
(4) Section 1.02 is amended by adding the following terms and sections to
the table set forth therein. in appropriate alphabetical sequence:
"Market Exchange Rate.............................................14.08
Specified Currency................................................14.08"
B. Amendment of Article Two. Article Two of the Indenture is amended as
follows:
(1) Clauses (8) and (13) of Section 2.01 are amended to read in their
entirety as follows:
"(8) if other than denominations of $1,000, if registered, and
$5,000, if unregistered, and any integral multiple of the applicable
denominations for Securities denominated in Dollars, the denominations in
which the Securities of such series shall be issuable;
"(13) whether the Securities of such series shall be issued as
registered Securities or as unregistered Securities, with or without
coupons; whether unregistered Securities may be exchanged for registered
Securities of such series and whether registered Securities may be
exchanged for unregistered Securities of such series (if permitted by
applicable laws and regulations) and the circumstances under which and the
place or places where any such exchanges, if permitted, may be made; and
whether the Securities of such series shall be issued in whole or in part
in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities and whether any Global
Securities of such series shall be issuable initially in temporary form,
and whether any Global Securities of such series shall be issuable in
definitive form, with or without coupons, and, if so, whether beneficial
owners of interests in any such definitive Global Security may exchange
such interests for Securities of such series and the circumstances under
which and the place or places where any such exchange may occur;
(2) Section 2.01 is amended to renumber clauses (14) and (15) to (19) and
(20) and to add the following additional clauses:
"(14) if other than Dollars, the coin, or currency or currencies, or
currency unit or units in which the Securities of such series shall be
denominated and in which payment of the principal of (and premium, if any)
and interest, if any, on any of such Securities shall be payable;
4
<PAGE> 6
"(15) if the principal of (and premium, if any) and interest, if any,
on any of the Securities of such series are to be payable at the election
of the Company or a Holder thereof or under some or all other
circumstances, in a coin, or currency or currencies, or currency unit or
units other than that in which the Securities are denominated, the period
or periods within which, and the terms and conditions upon which, such
election may be made, or the other circumstances under which any of the
Securities are to be so payable, and any provision requiring the Holder to
bear currency exchange costs by deduction from such payments;
"(16) if the amount of payments of principal (and premium, if any)
and interest, if any, on any of the Securities of such series may be
determined with reference to a currency, currency unit, commodity or
financial or non-financial index or indices, then the manner in which such
amounts shall be determined;
"(17) whether and under what circumstances and with what procedures
and documentation the Company will pay additional amounts on any of the
Securities and coupons, if any, of such series to any Holder who is not a
U.S. Person (including a definition of such term), in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether
the Company will have the option to redeem such Securities rather than pay
additional amounts (and the terms of any such option);"
"(18) the person to whom any interest on any registered Security of
such series shall be payable, if other than the person in whose name that
Security is registered at the close of business on the Record Date for
such interest, the manner in which, or the person to whom, any interest on
any unregistered Security of such series shall be payable, if otherwise
than upon presentation and surrender of the coupons appertaining thereto
as they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary Global Security on an interest payment
date will be paid if other than in the manner provided in Section 4.01;"
(3) Article Two is further amended to renumber existing Section 2.03 as
Section 2.04, to appropriately renumber each Section thereafter, and to add a
new Section 2.03 to read as follows:
"SECTION 2.03. Global Securities. If Securities of a series are
issuable in whole or in part as Global Securities pursuant to Section
2.01, then, notwithstanding clause (8) of Section 2.01 and the provisions
of Section 2.04, such Global Securities shall represent such of the
Outstanding Securities of such series as shall be specified therein and
may provide that they shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate
amount of Outstanding Securities represented thereby may
5
<PAGE> 7
from time to time be reduced to reflect exchanges or redemptions. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon instructions given by
such person or persons as shall be specified therein or in the Company
Direction to be delivered to the Trustee pursuant to Section 2.04 or
Section 2.07. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.07, the Trustee shall deliver and redeliver any
Global Security in the manner and upon written instructions given by the
person or persons specified therein or in the applicable Company
Direction. If a Company Direction pursuant to Section 2.04 or 2.07 has
been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Global Security
shall be in writing but need not comply with Section 14.05 and need not be
accompanied by an Opinion of Counsel.
"Notwithstanding the provisions of Sections 2.02 and 4.01, unless
otherwise specified pursuant to Section 2.01, payment of principal of (and
premium, if any) and interest, if any, on any Global Security shall be
made to the person or persons specified therein.
"If at any time the Depositary for the Global Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities of such series or if at any time the
Depositary for the Global Securities of such series shall no longer be
eligible to serve as Depositary, the Company shall appoint a successor
Depositary with respect to the Global Securities of such series. If a
successor Depositary for the Global Securities of such series is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 2.01 that such Securities be represented by one or
more Global Securities shall no longer be effective with respect to the
Global Securities of such series and the Company shall execute, and the
Trustee, upon receipt of a Company Direction for the authentication and
delivery of definitive Securities of such series, shall authenticate and
deliver, Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such series in exchange for such Global Security
or Securities.
"The company may at any time and in its sole discretion determine
that the Securities of any series or portion thereof issued in the form of
one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute,
and the Trustee, upon receipt of a Company Direction for the
authentication and delivery of definitive Securities of such series in
exchange for such Global Security or Securities, will authenticate and
deliver Securities of such series in definitive form and in an
6
<PAGE> 8
aggregate principal amount equal to the principal amount of such Global
Security or Securities being exchanged.
"Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such registered Securities
to, or upon the order of, the persons in whose names such Securities are
so registered.
"Unless otherwise specified by the Company pursuant to Section 2.01,
a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series 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.
"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 Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests."
(4) Section 2.06 (formerly Section 2.05) is amended by adding the words
"Subject to Sections 2.01 and 2.03," before the word "Upon" in the third
sentence of the first paragraph and before the word "At" in the beginning of the
third paragraph.
(5) Article Two is further amended to add new Sections 2.13 and 2.14, to
read in their entirety as follows:
"SECTION 2.13. Compliance with Certain Laws and Regulations. If any
unregistered Securities are to be issued in any series of Securities, the
Company shall use reasonable efforts to provide for arrangements and
procedures designed pursuant to then applicable laws and regulations, if
any, to ensure that such unregistered Securities are sold or resold,
exchanged, transferred and paid only in compliance with such laws and
regulations and without adverse consequences to the Company, the Holders
and the Trustee.
"SECTION 2.14. Medium-Term Securities.
7
<PAGE> 9
Notwithstanding any contrary provision herein, if all Securities of a
series are not to be originally issued at one time, it shall not be
necessary to deliver the Company Direction, Officers' Certificate,
supplemental indenture or Opinion of Counsel otherwise required pursuant to
Sections 2.01, 2.03, 2.04, 2.07 and Section 14.05 at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued; provided that any subsequent
direction by the Company to the Trustee to authenticate Securities of such
series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such direction, the
statements made in the Officers' Certificate or supplemental indenture
delivered pursuant to Section 2.01 shall be true and correct as if made on
such date.
"An Officers' Certificate or supplemental indenture, delivered
pursuant to his Section 2.14 in the circumstances set forth in the
preceding paragraph, may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee on original
issue from time to time upon the telephonic or written order of persons
designated in such Officers' Certificate or supplemental indenture
(telephonic instructions to be promptly confirmed in writing by such
person) and that such persons are authorized to determine, consistent with
such Officers' Certificate or any applicable supplemental indenture, such
terms and conditions of the Securities as are specified in such Officers'
Certificate or supplemental indenture."
C. Amendment of Article Three. Section 3.02 of the Indenture is amended
as follows:
(1) The fourth paragraph is amended to add the words "of like tenor
and terms" after the words "than all the Securities" and before the words
"of any series" in the first sentence of such paragraph.
(2) The fourth paragraph is further amended to add, after the last
sentence of such paragraph, the following sentence:
"If less than all the Securities of unlike tenor and terms of a series
are to be redeemed, the particular Securities to be redeemed shall be
selected by the Company."
8
<PAGE> 10
D. Amendment of Article Four. The last sentence of Section 4.01 of the
Indenture is amended by adding at the end of such sentence the words "or by wire
transfer to an account designated by such person."
E. Amendment of Article Fourteen. Article Fourteen of the Indenture is
amended as follows:
(1) Section 14.03 is amended to add the words "in Chicago, Illinois,
New York City and such other cities as shall be specified with respect to
such Securities" after the words "authorized newspaper" in the fourth
sentence of that Section.
(2) Section 14.05 is amended by adding the words "Except as otherwise
expressly provided in this Indenture" before the words "Upon any
application or demand" in the first paragraph of such Section.
(3) Article Fourteen is further amended by renumbering Sections 14.07
through 14.09 as Sections 14.09 through 14.11, and by adding the following
new Sections, to read as follows:
"SECTION 14.07. Moneys of Different Currencies To Be Segregated.
The Trustee shall segregate money, funds and accounts held by the
Trustee hereunder in one currency (or unit thereof) from any moneys,
funds or accounts in any other currencies (or units thereof),
notwithstanding any provision herein which would otherwise permit the
Trustee to commingle such amounts.
"SECTION 14.08. Payment To Be in Proper Currency. Other than as
provided herein or in the Security, an Officers' Certificate or a
supplemental indenture, the obligation of the Company to make any
payment of principal of (and premium, if any) and interest, if any,
on such Security shall not be discharged or satisfied by any tender
by the Company, or collection by the Trustee, in any currency or
currency unit other than that in which such Security is denominated
(the "Specified Currency"), except to the extent that the Trustee
timely holds for such payment the full amount of the Specified
Currency when due and payable. If any such tender or collection is
made in other than the Specified Currency, the Trustee may take such
actions as it considers appropriate to exchange such other currency
or currency unit for the Specified Currency. The
9
<PAGE> 11
costs and risks of any such exchange, including without limitation
the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall
or delinquency in the full amount of the Specified Currency then due
and payable and in no circumstances shall the Trustee be liable
therefor. The Company waives any defense of payment based upon any
such tender or collection which is not in the Specified Currency, or
which, when exchanged for the Specified Currency by the Trustee, is
less than the full amount of the Specified Currency then due and
payable.
Notwithstanding the foregoing, if a Specified Currency is not
available to make any payment of principal of (and premium, if any)
and interest, if any, on a Security denominated in other than Dollars
due to the imposition of exchange controls or other circumstances
beyond the Company's control, the Company shall be entitled to
satisfy its obligation by making such payment in Dollars on the basis
of the Market Exchange Rate on the date of such payment, or if such
Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate. For any Specified Currency,
Market Exchange Rate shall mean the noon buying rate in New York, New
York for cable transfers of such Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
A. Ratification of Indenture. The Indenture, as amended and modified by
this First Supplemental Indenture, is in all respects ratified, confirmed and
approved.
B. Successors and Assigns of Company Bound by First Supplemental
Indenture. All the covenants, stipulations, promises and agreements in this
First Supplemental Indenture contained by or on behalf of the Company shall bind
its successors and assigns, whether so expressed or not.
C. First Supplemental Indenture to Be Construed in Accordance with the
Laws of the State of Illinois. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of Illinois.
10
<PAGE> 12
D. Provisions Required by Trust Indenture Act of 1939 to Control. If and
to the extent that any provision of this First Supplemental Indenture limits,
qualities or conflicts with another provision included in the Indenture which is
required to be included in the Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
E. First Supplemental Indenture May be Executed in Counterparts. This
First Supplemental Indenture may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
F. Separability Clause. In case any provisions in this First Supplemental
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.
The Trustee accepts the trusts in this First Supplemental Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
11
<PAGE> 13
IN WITNESS WHEREOF, ILLINOIS TOOL WORKS INC. and HARRIS TRUST AND SAVINGS
BANK have caused this First Supplemental Indenture to be duly executed, and
their respective corporate seals to be affixed and attested, all as of the day
and year first above written.
ILLINOIS TOOL WORKS INC.
[CORPORATE SEAL] By /s/ David B. Smith
-----------------------------
Vice President
Attest:
/s/ Arthur M. Wright
- ------------------------------
Secretary
[CORPORATE SEAL] HARRIS TRUST AND SAVINGS BANK
By /s/ R. G. Mason
-----------------------------
Vice President
Attest:
/s/ D. Donovan
- ------------------------------
Assistant Secretary
12
<PAGE> 14
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this _3rd__ day of May, 1990, before me personally came DAVID B. SMITH
to me known, who, being by me duly sworn, did depose and say that he resides in
Cook County, Illinois; that he is Vice President of ILLINOIS TOOL WORKS INC.,
one of the parties described in and which executed the above instrument, and
that he signed his name thereto by authority of the Board of Directors of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand the day and year in this
certificate first above written.
/s/ Elizabeth R. Peppel
------------------------------------------
Notary Public
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this _3rd_ day of May, 1990, before me personally came __R.G. Mason___
to me known, who, being by me duly sworn, did depose and say that he resides in
Chicago, Illinois; that he is Vice President of HARRIS TRUST AND SAVINGS BANK,
one of the parties described in and which executed the above instrument, and
that he knows the corporate seal of said corporation; that the seal affixed to
the instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said Corporation, and that he signed his name thereto
by like authority.
IN WITNESS WHEREOF, I have hereunto, set my hand the day and year in this
certificate first above written.
/s/ T. Muzquiz
------------------------------------------
Notary Public
13
<PAGE> 1
EXHIBIT 5.1
[ILLINOIS TOOL WORKS INC. LETTERHEAD]
January 15, 1999
Illinois Tool Works Inc.
3600 West Lake Avenue
Glenview, IL 60025-5811
Re: $500,000,000 Debt Securities
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
As General Counsel of Illinois Tool Works Inc., a Delaware corporation
(the "Company"), I have participated in the Corporate and other proceedings
taken by the Company to authorize the issuance and sale of up to $500,000,000 of
debt securities (the "Debt Securities") pursuant to the Indenture dated as of
November 1, 1986, as amended, between the Company and Harris Trust and Savings
Bank, as Trustee. The Debt Securities are covered by the Registration Statement
on Form S-3 filed by the Company with the Securities and Exchange Commission. I
participated in the preparation of the Registration Statement and have examined
such other documents and such legal authorities as I have deemed necessary for
purposes of this opinion.
Based upon the foregoing, I am of the opinion that when the Debt
Securities have been duly executed, authenticated and delivered against receipt
by the Company of the consideration therefor, such Debt Securities will
constitute the legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, except to the extent that enforcement thereof
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws of general application relating to or
affecting the enforcement of the rights of creditors or by equitable principles,
regardless of whether enforcement is sought in a proceeding in equity or at law.
I consent to the use of my name in the Registration Statement and to the
filing of this opinion as an Exhibit to such Registration Statement.
Very truly yours,
/s/ Stewart S. Hudnut
------------------------------
Stewart S. Hudnut
Senior Vice President, General
Counsel & Secretary
<PAGE> 1
EXHIBIT 10.1
EXECUTION COPY
- --------------------------------------------------------------------------------
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of September 30, 1998
among
ILLINOIS TOOL WORKS INC.,
THE LENDERS
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I
DEFINITIONS....................................................................Page 2
1.1. Definitions..................................................Page 2
1.2. Accounting Terms and Determinations.........................Page 16
ARTICLE II
THE FACILITY..................................................................Page 16
2.1. The Facility................................................Page 16
2.1.1. Description of Facility...........................Page 16
2.1.2. Availability of Facility; Required Payments.......Page 17
2.2. Committed Advances..........................................Page 17
2.2.1. Committed Advances................................Page 17
2.2.2. Types of Committed Advances.......................Page 17
2.2.3. Method of Selecting Types and Interest Periods for New
Committed Advances................................Page 17
2.2.4. Conversion and Continuation of Outstanding
Advances........................................Page 18
2.3. Competitive Bid Advances....................................Page 18
2.3.1. Competitive Bid Option; Repayment of
Competitive Bid Advances........................Page 18
2.3.2. Competitive Bid Quote Request.....................Page 19
2.3.3. Invitation for Competitive Bid Quotes.............Page 20
2.3.4. Submission and Contents of Competitive
Bid Quotes......................................Page 20
2.3.5. Notice to the Company.............................Page 21
2.3.6. Acceptance and Notice by the Borrowers............Page 22
2.3.7. Allocation by the Agent...........................Page 22
2.4. Fees........................................................Page 23
2.4.1. Facility Fee......................................Page 23
2.4.2. Agency and Administration Fees....................Page 23
2.5. General Facility Terms......................................Page 23
2.5.1. Method of Borrowing. .............................Page 23
2.5.2. Minimum Amount of Each Committed Advance..........Page 23
2.5.3. Optional Principal Payments.......................Page 23
2.5.4. Interest Rates; Interest Periods..................Page 24
2.5.5. Rate after Maturity...............................Page 24
2.5.6. Interest Payment Dates; Interest Basis............Page 25
2.5.7. Method of Payment.................................Page 25
2.5.8. Notes; Telephonic Notices.........................Page 26
</TABLE>
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<TABLE>
<S> <C>
2.5.9. Notification of Advances, Interest Rates
and Prepayments.................................Page 26
2.5.10. Non-Receipt of Funds by the Agent.................Page 26
2.5.11. Termination, Reduction or Increase
in the Aggregate Commitments.....................Page 27
2.5.12. Market Disruption. ...............................Page 30
2.5.13. Lending Installations.............................Page 30
2.5.14. Borrowing Subsidiaries............................Page 30
2.5.15. Withholding Tax Exemption.........................Page 31
2.5.16. Judgment Currency.................................Page 31
2.5.17. Extension of Termination Date.....................Page 32
ARTICLE III
CHANGE IN CIRCUMSTANCES.......................................................Page 33
3.1. Taxes.........................................................Page 33
3.1.1. Payments to be Free and Clear.......................Page 33
3.1.2. Grossing-up of Payments.............................Page 33
3.2. Increased Costs. ...........................................Page 34
3.3. Changes in Capital Adequacy Regulations.....................Page 34
3.4. Availability of Types of Advances...........................Page 35
3.5. Funding Indemnification.....................................Page 35
3.6. Mitigation of Additional Costs or Adverse Circumstances.....Page 35
3.7. Lender Statements; Survival of Indemnity....................Page 36
ARTICLE IV
CONDITIONS PRECEDENT..........................................................Page 37
4.1. Initial Advance.............................................Page 37
4.2. Initial Advance to Each Borrowing Subsidiary. ..............Page 38
4.3. Each Advance................................................Page 38
ARTICLE V
REPRESENTATIONS AND WARRANTIES................................................Page 39
5.1. Corporate Existence and Standing............................Page 39
5.2. Authorization and Validity. ................................Page 39
5.3. No Conflict; Government Consent.............................Page 39
5.4. Financial Statements........................................Page 39
5.5. Material Adverse Change.....................................Page 40
5.6. Taxes. .....................................................Page 40
5.7. Litigation..................................................Page 40
5.8. Material Subsidiaries.......................................Page 40
5.9. ERISA.......................................................Page 40
</TABLE>
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<TABLE>
<S> <C>
5.10. Full Disclosure.............................................Page 40
5.11. Title to Properties.........................................Page 40
5.12. Patents and Trademarks......................................Page 41
5.13. No Defaults.................................................Page 41
5.14. Investment Company Act. ....................................Page 41
5.15. Compliance with Environmental Laws. ........................Page 41
5.16. Regulations U and X.........................................Page 41
ARTICLE VI
COVENANTS.....................................................................Page 42
6.1. Financial Reporting.........................................Page 42
6.2. Use of Proceeds. ...........................................Page 43
6.3. Notice of Default...........................................Page 43
6.4. Corporate Existence.........................................Page 43
6.5. Taxes.......................................................Page 43
6.6. Insurance...................................................Page 44
6.7. Compliance with Laws........................................Page 44
6.8. Inspection..................................................Page 44
6.9. Sale of Assets; Merger and Consolidation....................Page 44
6.10. Liens. .....................................................Page 45
6.11. Consolidated Indebtedness to Consolidated Total Capital.....Page 46
6.12. Consolidated Net Worth......................................Page 46
ARTICLE VII
DEFAULTS......................................................................Page 46
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................................Page 48
8.1. Acceleration................................................Page 48
8.2. Amendments..................................................Page 48
8.3. Preservation of Rights......................................Page 49
ARTICLE IX
GUARANTY......................................................................Page 49
9.1. Guaranty....................................................Page 49
9.2. Waivers.....................................................Page 50
9.3. Guaranty Absolute. .........................................Page 50
9.4. Waiver of Subrogation.......................................Page 51
9.5. Acceleration. ..............................................Page 51
9.6. Termination Date............................................Page 51
</TABLE>
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<TABLE>
<S> <C>
ARTICLE X
GENERAL PROVISIONS............................................................Page 52
10.1. Governmental Regulation.....................................Page 52
10.2. Taxes. .....................................................Page 52
10.3. Headings....................................................Page 52
10.4. Entire Agreement............................................Page 52
10.5. Several Obligations.........................................Page 52
10.6. Expenses; Indemnification...................................Page 52
10.7. Numbers of Documents........................................Page 53
10.8. Severability of Provisions..................................Page 53
10.9. Nonliability of Lenders. ...................................Page 53
10.10. CHOICE OF LAW...............................................Page 53
10.11. CONSENT TO JURISDICTION.....................................Page 53
10.12. WAIVER OF JURY TRIAL........................................Page 54
10.13. Confidentiality.............................................Page 54
10.14. Restructuring Date..........................................Page 54
10.15. Euro........................................................Page 55
ARTICLE XI
THE AGENT.....................................................................Page 55
11.1. Appointment.................................................Page 55
11.2. Powers......................................................Page 55
11.3. General Immunity............................................Page 55
11.4. No Responsibility for Loans, Recitals, etc..................Page 55
11.5. Action on Instructions of Lenders...........................Page 56
11.6. Employment of Agents and Counsel............................Page 56
11.7. Reliance on Documents; Counsel..............................Page 56
11.8. Agent's Reimbursement and Indemnification...................Page 56
11.9. Rights as a Lender. ........................................Page 57
11.10. Lender Credit Decision......................................Page 57
11.11. Successor Agent. ...........................................Page 57
ARTICLE XII
SETOFF; RATABLE PAYMENTS......................................................Page 58
12.1. Setoff......................................................Page 58
12.2. Ratable Payments............................................Page 58
</TABLE>
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<TABLE>
<S> <C>
ARTICLE XIII
BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS.............................Page 58
13.1. Successors and Assigns......................................Page 58
13.2. Participations..............................................Page 59
13.2.1. Permitted Participants; Effect. ..................Page 59
13.2.2. Voting Rights. ...................................Page 59
13.2.3. Benefit of Setoff.................................Page 59
13.3. Assignments.................................................Page 59
13.3.1. Permitted Assignments.............................Page 60
13.3.2. Effect; Effective Date............................Page 60
13.4. Dissemination of Information................................Page 60
13.5. Tax Treatment. .............................................Page 60
ARTICLE XIV
NOTICES.......................................................................Page 61
14.1. Giving Notice. .............................................Page 61
14.2. Change of Address. .........................................Page 61
ARTICLE XV
COUNTERPARTS..................................................................Page 61
SCHEDULE I
Euro-Currency Payment Offices of the Agent..........................................I
SCHEDULE II................................................................................II
Material Subsidiaries..............................................................II
EXHIBIT "A-1"
COMMITTED NOTE....................................................................E-1
EXHIBIT "A-2"
COMPETITIVE BID NOTE..............................................................E-3
EXHIBIT "B-1".............................................................................E-5
FORM OF COMPANY OPINION...........................................................E-5
</TABLE>
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<TABLE>
<S> <C>
EXHIBIT "B-2".............................................................................E-7
FORM OF SUBSIDIARY OPINION........................................................E-7
EXHIBIT "C"
COMPETITIVE BID QUOTE REQUEST.....................................................E-9
EXHIBIT "D"
INVITATION FOR COMPETITIVE BID QUOTES............................................E-10
EXHIBIT "E"
COMPETITIVE BID QUOTE............................................................E-11
EXHIBIT "F"
ASSIGNMENT AGREEMENT.............................................................E-13
EXHIBIT "G"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION...................................E-23
EXHIBIT "H"
FORM OF ASSUMPTION LETTER........................................................E-24
EXHIBIT "I"
COMPLIANCE CERTIFICATE...........................................................E-26
EXHIBIT "J"
LENDER ASSUMPTION AGREEMENT......................................................E-29
</TABLE>
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<PAGE> 8
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement (this "Agreement"), dated
as of September 30, 1998, is among Illinois Tool Works Inc. (the "Company"), any
Borrowing Subsidiaries which may become a party hereto from time to time, the
Lenders and The First National Bank of Chicago, as Agent.
RECITALS
WHEREAS, the Company, certain lenders and The First National Bank of
Chicago, as agent for such lenders, entered into that certain Amended and
Restated Credit Agreement dated as of May 30, 1996 (the "Original Credit
Agreement"), in which such lenders agreed to make available to the Company and
any Borrowing Subsidiaries from time to time party thereto loans in an aggregate
principal amount of up to $250,000,000 (herein called the "Original Credit
Facility");
WHEREAS, the parties hereto wish to continue the existing credit
relationship among them by amending and restating the Original Credit Agreement
rather than entering into a new and unrelated credit agreement;
WHEREAS, the Company, the Lenders and the Agent desire to restructure the
Original Credit Facility so as to (i) extend the term of the Original Credit
Facility, (ii) increase the aggregate commitments thereunder to the Aggregate
Commitment (as defined herein) and (iii) amend various other provisions in the
Original Credit Agreement; and
WHEREAS, pursuant to the terms of this Second Amended and Restated Credit
Agreement, on the Restructuring Date, (i) the aggregate of the commitments under
the Original Credit Facility shall be increased to the Aggregate Commitment (the
credit facility in such amount set forth herein the "New Credit Facility"), (ii)
all Obligations of the Borrower outstanding as of the Restructuring Date under
the Original Credit Facility shall be paid in full on the Restructuring Date and
(iii) all provisions of this Second Amended and Restated Credit Agreement not
theretofore in effect shall become effective;
NOW, THEREFORE, in consideration of the undertakings set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
<PAGE> 9
ARTICLE I
DEFINITIONS
1.1.Definitions.
As used in this Agreement:
"Absolute Rate" means, with respect to a Loan made by a given Lender for
the relevant Absolute Rate Interest Period, the rate of interest per annum
(rounded to the nearest 1/100 of 1%) offered by such Lender and accepted by the
applicable Borrower pursuant to Section 2.3.6(iii).
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the applicable Borrower at the same time and for the same Absolute
Rate Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
Advance or an Absolute Rate Loan, a period of not less than 30 and not more than
270 days commencing on a Business Day selected by the applicable Borrower
pursuant to this Agreement. If such Absolute Rate Interest Period would end on a
day which is not a Business Day, such Absolute Rate Interest Period shall end on
the next succeeding Business Day.
"Absolute Rate Loan" means a Loan which bears interest at an Absolute Rate.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Company or any
Subsidiary (a) acquires any going business or all or substantially all of the
assets of any firm, corporation or division thereof, whether through purchase of
assets, merger or otherwise, or (b) directly or indirectly acquires (in one
transaction or in a series of transactions) at least 25% (in number of votes) of
the equity securities of a corporation which have ordinary voting power for the
election of directors (other than securities having such power only by reason of
the happening of a contingency).
"Advance" means a borrowing hereunder consisting of the aggregate amount of
the several Loans made by some or all of the Lenders to the Borrowers of the
same Type (or on the same interest basis in the case of Competitive Bid
Advances) and, in the case of Fixed Rate Advances, for the same Interest Period
and includes a Competitive Bid Advance.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or
Page 2
<PAGE> 10
other ownership interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as agent
for the Lenders pursuant to Article XI, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article XI.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders hereunder, as increased or reduced from time to time pursuant to the
terms hereof.
"Agreed Currency" shall mean Dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, French francs, Japanese yen, pounds sterling,
the Euro (upon and after the Euro Implementation Date), and any other currency
which is freely transferable and convertible into Dollars, as available and if
available, in which deposits are customarily offered to banks in the London
interbank market, which the applicable Borrower requests the Agent to include as
an Agreed Currency hereunder and which is acceptable to each Lender; provided
that the Agent shall promptly notify each Lender of each such request and each
Lender shall be deemed to have agreed to each such request if its objection
thereto has not been received by the Agent within five Business Days from the
date of such notification by the Agent to such Lender.
"Agreement" means this Second Amended and Restated Credit Agreement, as it
may be amended or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, on any date and with respect to all Floating
Rate Advances, a fluctuating rate of interest per annum equal to the higher of
(i) the Federal Funds Effective Rate most recently determined by the Agent plus
1/2% per annum and (ii) the Corporate Base Rate. Changes in the rate of interest
on each Floating Rate Advance will take effect simultaneously with each change
in the Alternate Base Rate. The Agent will give notice promptly to the Company
and the Lenders of changes in the Alternate Base Rate, provided, however, that
the Agent's failure to give any such notice will not affect the Company's
obligation to pay interest to the Lenders on Floating Rate Advances at the then
effective Alternate Base Rate.
"Applicable Facility Fee Rate" means a percentage rate per annum equal to
(i) during any Level 1 Rating Period, 0.065%, (ii) during any Level 2 Rating
Period, 0.075% and (iii) during any Level 3 Rating Period, 0.10%. Any change in
the Applicable Facility Fee Rate shall become effective immediately upon a
public announcement by Moody's or S&P which would change the Rating Period then
applicable to the Company. At any time at which S&P's rating of the Company's
senior unsecured long-term debt differs from Moody's rating thereof by more than
one
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level (including each modifier as a separate level), then the Applicable
Facility Fee Rate shall be determined by reference to the rating which is one
level below the higher of the two ratings.
"Applicable Margin" means, with respect to each Eurocurrency Committed
Advance, a percentage rate per annum equal to (i) during any Level 1 Rating
Period, 0.13%, (ii) during any Level 2 Rating Period, 0.15% and (iii) during any
Level 3 Rating Period, 0.20%. Any change in the Applicable Margin shall become
effective immediately upon a public announcement by Moody's or S&P which would
change the Rating Period then applicable to the Company, and shall apply to all
Eurocurrency Committed Advances outstanding on the date of such announcement as
well as all Eurocurrency Committed Advances made thereafter (until any
subsequent public announcement which would further change the Rating Period
applicable to the Company). At any time at which S&P's rating of the Company's
senior unsecured long-term debt differs from Moody's rating thereof by more than
one level (including each modifier as a separate level), then the Applicable
Margin shall be determined by reference to the rating which is one level below
the higher of the two ratings.
"Approximate Equivalent Amount" of any currency with respect to any amount
of Dollars shall mean the Equivalent Amount of such currency with respect to
such amount of Dollars at such date (i) if such currency is Australian dollars,
Canadian dollars, Deutsche marks, Dutch guilders, French francs, Japanese yen or
pounds sterling, rounded up to the nearest 1,000,000 of such currency and (ii)
if such currency is any other Agreed Currency, rounded up to the nearest amount
of such currency as determined by the Agent from time to time.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assuming Lender" is defined in Section 2.5.11.
"Assumption Letter" means a letter of a Subsidiary of the Company addressed
to the Lenders in substantially the form of Exhibit H hereto pursuant to which
such Subsidiary agrees to become a "Borrowing Subsidiary" and agrees to be bound
by the terms and conditions hereof.
"Borrower" means the Company or any Borrowing Subsidiary and "Borrowers"
means, collectively, the Company and each Borrowing Subsidiary.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Subsidiary" means any Subsidiary duly designated by the Company
pursuant to Section 2.5.14 hereof to request Advances hereunder, which
Subsidiary shall have delivered to the Agent an Assumption Letter in accordance
with Section 2.5.14.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Committed Advances or Eurocurrency Bid Rate Advances
and to any currency
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conversion (other than those denominated in Euro) a day other than Saturday or
Sunday on which banks are open for business in Chicago and New York City, on
which dealings in United States dollars are carried on in the London interbank
market and, where funds are to be paid or made available a currency other than
Dollars, on which commercial banks are open for domestic and international
business (including dealings in deposits in such currency) in both London and
the place where such funds are to be paid or made available, (ii) with respect
to any borrowing, payment or rate selection denominated in Euro, a day (other
than a Saturday or Sunday) on which a suitable clearing system for the Euro is
open for business, as determined by the Agent, and (iii) for all other purposes,
a day other than Saturday or Sunday on which banks are open for business in
Chicago and New York City.
"Capitalized Lease" means any lease the obligation for Rentals with respect
to which is required to be capitalized on a balance sheet of the lessee in
accordance with Agreement Accounting Principles.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of the Lender to make
Loans to the Borrowers not exceeding the amount set forth opposite its signature
below or as set forth in an applicable Assignment Agreement in the form of
Exhibit "F" hereto or Lender Assumption Agreement in the form of Exhibit "J"
hereto received by the Agent under the terms of Section 12.3, as such amount may
be modified from time to time pursuant to the terms of this Agreement.
"Commitment Date" is defined in Section 2.5.11.
"Commitment Increase" is defined in Section 2.5.11.
"Committed Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Committed Loans made by the Lenders to the Borrowers at
the same time, of the same Type and, in the case of Fixed Rate Advances, for the
same Interest Period.
"Committed Borrowing Notice" is defined in Section 2.2.3.
"Committed Loan" means a Loan made by a Lender pursuant to Section 2.2.
"Committed Note" means a promissory note in substantially the form of
Exhibit "A-1" hereto, with appropriate insertions, duly executed and delivered
to the Agent by the applicable Borrower for the account of a Lender and payable
to the order of such Lender in the amount of its Commitment, including any
amendment, modification, renewal or replacement of such promissory note.
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"Company" means Illinois Tool Works Inc., a Delaware corporation, and its
successors and assigns.
"Competitive Bid Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of the
Lenders to the applicable Borrower at the same time, at the same interest basis,
and for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.3.6.
"Competitive Bid Loan" means a Eurocurrency Bid Rate Loan or an Absolute
Rate Loan, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
Eurocurrency Base Rate offered for a Eurocurrency Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added or subtracted from
such Eurocurrency Base Rate.
"Competitive Bid Note" means a promissory note in substantially the form of
Exhibit "A-2" hereto, with appropriate insertions, duly executed and delivered
to the Agent by the applicable Borrower for the account of a Lender and payable
to the order of such Lender, including any amendment, modification, renewal or
replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in the
form of Exhibit "E" hereto completed and delivered by a Lender to the Agent in
accordance with Section 2.3.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit "C" hereto completed and delivered by the
Company to the Agent in accordance with Section 2.3.2.
"Consolidated Indebtedness" means, at any date as of which the same is to
be determined, the Indebtedness of the Company and its Consolidated
Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Net Income" means for any period the amount of net income (or
deficit) of the Company and its Consolidated Subsidiaries for such period,
determined on a consolidated basis in accordance with Agreement Accounting
Principles, excluding any net income (or net loss) of a Consolidated Subsidiary
for any period during which it was not a Consolidated Subsidiary, or any net
income (or net loss) of any business, properties or assets acquired (by way of
merger, consolidation, purchase or otherwise) by the Company or any Consolidated
Subsidiary for any period prior to the date of acquisition thereof.
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"Consolidated Net Worth" means, at any date as of which the same is to be
determined, the consolidated stockholders' equity (exclusive of foreign currency
translation adjustments) of the Company and its Consolidated Subsidiaries,
determined in accordance with Agreement Accounting Principles.
"Consolidated Subsidiary" means, at any date as of which the same is to be
determined, any Subsidiary or other entity the accounts of which would be
consolidated with those of the Company in its consolidated financial statements
if such statements were prepared as of such date in accordance with Agreement
Accounting Principles.
"Consolidated Tangible Net Worth" means, at any date as of which the same
is to be determined, Consolidated Net Worth less consolidated Intangible Assets,
determined in accordance with Agreement Accounting Principles. For purposes of
this definition "Intangible Assets" means the amount (to the extent reflected in
determining Consolidated Net Worth) of (i) any surplus resulting from any
write-up (other than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within twelve months after
the acquisition of such business) subsequent to December 31, 1997 in the book
value of any asset owned by the Company or a Consolidated Subsidiary, and (ii)
all unamortized debt discount and expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, copyrights,
organization or developmental expenses and other intangible items.
"Consolidated Total Capital" means, at any date as of which the same is to
be determined, Consolidated Indebtedness plus consolidated stockholders' equity
(exclusive of foreign currency translation adjustments) of the Company and its
Consolidated Subsidiaries, all determined as of such date in accordance with
Agreement Accounting Principles.
"Conversion/Continuation Notice" is defined in Section 2.2.4.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Company or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when and
as said corporate base rate changes.
"Default" means an event described in Article VII.
"Dollar Amount" of any currency at any date shall mean (i) the amount of
such currency if such currency is Dollars or (ii) the equivalent amount of
Dollars if such currency is any currency other than Dollars, calculated on the
basis of the arithmetical mean of the buy and sell
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spot rates of exchange of the Agent for such currency on the London market at
11:00 a.m., London time, two Business Days prior to the date on which such
amount is to be determined.
"Dollars" and "$" shall mean lawful money of the United States of America.
"Eligible Bank" means, for purposes of Article XIII, a commercial bank,
which may be an Affiliate of a Lender, or any other entity regularly engaged in
the making of loans or other extensions of credit, whose long-term senior
unsecured credit rating is at least A- according to S&P or A3 according to
Moody's and to which the Company and the Agent shall have consented, such
consent not to be unreasonably withheld.
"Equivalent Amount" of any currency with respect to any amount of Dollars
at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such other currency at 11:00 a.m.,
London time, two Business Days prior to the date on which such amount is to be
determined.
"ERISA" means the Employee Retirement Income Security Act of l974, as
amended from time to time.
"Euro" means the euro referred to in Council Regulation (EC) No 1103/97
dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the Economic and Monetary Union.
"Euro Implementation Date" means the first date (currently expected to be
January 1, 1999) on which the Euro becomes the currency of some or all of the
member states of the European Union.
"Eurocurrency Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.3.
"Eurocurrency Base Rate" means, with respect to a Eurocurrency Committed
Advance, a Eurocurrency Committed Loan, a Eurocurrency Bid Rate Advance or a
Eurocurrency Bid Rate Loan for the relevant Eurocurrency Interest Period, the
applicable London interbank offered rate for deposits in the Agreed Currency
appearing on Telerate Page 3750 as of 11 a.m. (London time) two Business Days
prior to the first day of such Eurocurrency Interest Period, and having a
maturity equal to such Eurocurrency Interest Period. If no London interbank
offered rate of such maturity then appears on Telerate Page 3750, then the
Eurocurrency Base Rate shall be equal to the London interbank offered rate for
deposits in the Agreed Currency maturing immediately before or immediately after
such maturity, whichever is higher, as determined by the Agent from Telerate
Page 3750.
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"Eurocurrency Bid Rate" means, with respect to a Loan made by a given
Lender for the relevant Eurocurrency Interest Period, the sum of (i) the
Eurocurrency Base Rate and (ii) the Competitive Bid Margin offered by such
Lender and accepted by the applicable Borrower pursuant to Section 2.3.6(i).
"Eurocurrency Bid Rate Advance" means a Competitive Bid Advance which bears
interest at a Eurocurrency Bid Rate.
"Eurocurrency Bid Rate Loan" means a Competitive Bid Loan which bears
interest at a Eurocurrency Bid Rate.
"Eurocurrency Committed Advance" means an Advance which bears interest at a
Eurocurrency Rate requested by the applicable Borrower pursuant to Section 2.2.
"Eurocurrency Committed Loan" means a Loan which bears interest at a
Eurocurrency Rate requested by the applicable Borrower pursuant to Section 2.2.
"Eurocurrency Interest Period" means, with respect to a Eurocurrency
Committed Advance, a Eurocurrency Committed Loan, a Eurocurrency Bid Rate
Advance or a Eurocurrency Bid Rate Loan, a period of one, two, three or six
months commencing on a Business Day selected by the Company pursuant to this
Agreement. Such Eurocurrency Interest Period shall end on (but exclude) the day
which corresponds numerically to such date of commencement one, two, three or
six months thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Eurocurrency Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If a Eurocurrency Interest Period would
otherwise end on a day which is not a Business Day, such Eurocurrency Interest
Period shall end on the next succeeding Business Day, provided, however, that if
said next succeeding Business Day falls in a new month, such Eurocurrency
Interest Period shall end on the immediately preceding Business Day.
"Eurocurrency Loan" means a Eurocurrency Committed Loan or a Eurocurrency
Bid Rate Loan, as applicable.
"Euro-Currency Payment Office" of the Agent shall mean, for each of the
Agreed Currencies, the office, branch or affiliate of the Agent specified as the
"Euro-Currency Payment Office" for such currency in Schedule I hereto or such
other office, branch, affiliate or correspondent bank of the Agent as it may
from time to time specify to each Borrower and each Lender as its Euro-Currency
Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Committed Advance
or a Eurocurrency Committed Loan for the relevant Eurocurrency Interest Period,
the sum of (i) the quotient of (a) the Eurocurrency Base Rate applicable to such
Eurocurrency Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such
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Eurocurrency Interest Period plus (ii) the Applicable Margin. The Eurocurrency
Rate shall be rounded, if necessary, to the next higher 1/16 of 1%.
"Extension Date" is defined in Section 2.5.17.
"Extension Request" is defined in Section 2.5.17.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to (i) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York or (ii) if such rate is
not so published for any day which is a Business Day, the average of the
quotations at approximately 10 a.m. (Chicago time) for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by the Agent.
"Financial Officer" means the Senior Vice President and Chief Financial
Officer, the Vice President and Treasurer or such other officer of the Company
as may be designated by the Company from time to time.
"Financial Subsidiary" means any Subsidiary the primary business of which
is investing in financial assets, including, without limitation, each of Champs
Investments, Cumberland Leasing Co., Elleyse Financing, ITW Finance II LLC, ITW
International Finance SAS, ITW Investments Inc., ITW Leasing & Investments Inc.,
ITW Mortgage Investments I, Inc., ITW Mortgage Investments III, Inc., ITW
Mortgage Investments IV, Inc., ITW Real Estate Investments Inc., ITW Mortgage
Investments II, Inc., ITW Real Estate L.L.C., ITW Residuals Inc. and ITW Tech
Co.
"First Chicago" means The First National Bank of Chicago in its individual
capacity, and its successors and assigns.
"Fixed Rate" means the Eurocurrency Rate, the Eurocurrency Bid Rate or the
Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to the Alternate
Base Rate.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
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"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Friendly Acquisition" means an Acquisition which has been either (a) not
disapproved by the board of directors of the corporation, or the managing body
of the firm, which is the subject of such Acquisition after such board or
managing body has been given the opportunity to consider such Acquisition or (b)
recommended by such board to the shareholders of such corporation and, if
required by applicable law, approved by such shareholders, and excluding in any
event any Acquisition involving an "unfriendly" or contested tender offer.
"Guaranty" of any Person means any agreement by which such person assumes,
guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes liable upon, the obligation of any other
Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person or otherwise assures any creditor of
such other Person against loss, and shall include, without limitation, the
contingent liability of such Person under or in relation to any Letter of
Credit, but shall exclude endorsements for collection or deposit in the ordinary
course of business.
"Increase Date" is defined in Section 2.5.11.
"Increasing Lender" is defined in Section 2.5.11.
"Indebtedness" means, with respect to the Company and each Subsidiary, such
Person's (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of Property or services (other than accounts payable
arising in the ordinary course of such Person's business payable on terms
customary in the trade), (iii) obligations, whether or not assumed, secured by
Liens or payable out of the proceeds or production from property now or
hereafter owned or acquired by such Person, (iv) obligations which are evidenced
by notes, acceptances, or other instruments, (v) Capitalized Lease Obligations,
and (vi) obligations for which such person is obligated pursuant to a Guaranty
(excluding any Guaranties of obligations included in (i) through (v) above).
"Interest Period" means a Eurocurrency Interest Period or an Absolute Rate
Interest Period.
"Invitation for Competitive Bid Quotes" means an Invitation for Competitive
Bid Quotes substantially in the form of Exhibit "D" hereto, completed and
delivered by the Agent to the Lenders in accordance with Section 2.3.3.
"Lender Assumption Agreement" is defined in Section 2.5.11.
"Lenders" means the financial institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
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"Lending Installation" means any office, branch, subsidiary or affiliate of
any Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Level 1 Rating Period" means any period during which (i) the Company's
senior unsecured long-term debt is rated AA- or higher by S&P or Aa3 or higher
by Moody's (with the higher rating applying) or, (ii) if the Company has no
senior unsecured long-term debt outstanding, any period during which the
Company's commercial paper is rated A1+ or higher by S&P and P1 or higher by
Moody's.
"Level 2 Rating Period" means any period which does not qualify as a Level
1 Rating Period during which (i) the Company's senior unsecured long-term debt
is rated A or higher by S&P or A2 or higher by Moody's (with the higher rating
applying) or, (ii) if the Company has no senior unsecured long-term debt
outstanding, any period during which the Company's commercial paper is rated A1
or higher by S&P and P1 or higher by Moody's.
"Level 3 Rating Period" means any period which does not qualify as a Level
1 or Level 2 Rating Period.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion, if any, of
any Advance.
"Loan Documents" means this Agreement and the Notes.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise) or results of operations
of the Company and its Subsidiaries taken as a whole, (ii) the ability of the
Borrowers to perform their obligations under the Loan Documents, or (iii) the
validity or enforceability of any of the Loan Documents or the rights or
remedies of the Agent or the Lenders thereunder.
"Material Subsidiary" means, at any time, any Subsidiary which as of such
time has assets in excess of $50,000,000.
"Moody's" means Moody's Investors Service, Inc or any rating agency which
is generally recognized as a successor thereto.
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"National Currency Unit" means the unit of currency (other than a Euro
unit) of each member state of the European Union that participates in the third
stage of Economic and Monetary Union.
"Notes" means, collectively, the Competitive Bid Notes and the Committed
Notes; and "Note" means any one of the Notes.
"Obligations" means all unpaid principal of and accrued and unpaid interest
on the Notes, all accrued and unpaid fees and all other reimbursements,
indemnities or other obligations of the Borrowers to the Lenders or to any
Lender or the Agent arising under the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Payment Date" means the last Business Day of each calendar quarter.
"Person" means any corporation, natural person, firm, joint venture,
partnership, trust, unincorporated organization, enterprise, government or any
department or agency of any government.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Company or any member of the Controlled Group may have any
liability.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Rating Period" means either a Level 1 Rating Period, a Level 2 Rating
Period or a Level 3 Rating Period.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System from time to time in effect and shall include any successor or
other regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the Federal Reserve
System.
"Regulations U and X" means Regulations U and X of the Board of Governors
of the Federal Reserve System from time to time in effect and shall include any
successor or other regulations or official interpretations of said Board of
Governors relating to the extension of credit by banks for the purpose of
purchasing or carrying margin stocks applicable to member banks of the Federal
Reserve System.
"Rentals" means and includes all fixed rents (including as such all
payments which the lessee is obligated to make to the lessor on termination of
the lease or surrender of the property)
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payable by the Company or a Subsidiary, as lessee or sublessee under a lease of
real or personal property, but shall be exclusive of any amounts required to be
paid by the Company or a Subsidiary (whether or not designated as rents or
additional rents) on account of maintenance, repairs, insurance, taxes and
similar charges. Fixed rents under any so-called, "percentage leases" shall be
computed solely on the basis of the minimum rents, if any, required to be paid
by the lessee regardless of sales volume or gross revenues.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event.
"Required Lenders" means Lenders in the aggregate having at least 66-2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66-2/3% of the aggregate unpaid
principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a Eurocurrency Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Committed Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States office of
such Lender to United States residents). The Reserve Requirement shall be
adjusted automatically on and as of the effective date of any change in the
applicable reserve requirement.
"Restructuring Date" means the date upon which the Agent shall have
reasonably determined that the conditions set forth in Section 4.1 have been
fulfilled or waived.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any rating agency which is generally recognized
as a successor thereto.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Security" shall have the same meaning as in Section 2(1) of the Securities
Act of 1933, as amended.
"Single Employer Plan" means a Plan maintained by the Company or any member
of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly
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or indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, or (ii) any partnership,
association, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" shall mean a Subsidiary of the Company.
"Substantial Portion" means, with respect to the Property of the Company
and its Subsidiaries, Property which represents more than 10% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for deposits in the Agreed Currencies).
"Termination Date" means September 30, 2003 or any later date as may be
specified by the Agent as the Termination Date in accordance with Section 2.5.17
or any other date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Type" means, with respect to any Loan or Advance, its nature as a Floating
Rate Advance or Loan, Eurocurrency Committed Advance or Loan, Eurocurrency Bid
Rate Advance or Loan or Absolute Rate Advance or Loan.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all currently accrued vested nonforfeitable benefits under all Single
Employer Plans exceeds the fair market value of all such Plan assets allocable
to such benefits, all determined on an ongoing Plan basis as set forth in the
then most recent actuarial valuation for such Plans.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Wholly-Owned," when used in connection with any Subsidiary, means (i) any
Subsidiary all of the outstanding voting securities of which shall at the time
be owned or controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one or more
Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, association,
joint venture or similar business organization 100% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled.
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"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
affects the business, operations and financial condition of the Borrower and its
Subsidiaries and of the Borrower's and its Subsidiaries' material customers,
suppliers and vendors.
"Year 2000 Program" is defined in Section 5.18.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
1.2. Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with Agreement Accounting
Principles.
ARTICLE II
THE FACILITY
2.1. The Facility.
2.1.1. Description of Facility. The Lenders grant to the Borrowers a
revolving credit facility pursuant to which, and upon the terms and subject to
the conditions herein set out:
(i) each Lender severally agrees to make Committed Loans in Agreed
Currencies to the Borrowers in accordance with Section 2.2;
provided that, after giving effect to such Loans, the
Committed Loans shall be denominated in not more than eight
Agreed Currencies (including Dollars); provided further
that, if any Advance made (or to be made) on or after the
Euro Implementation Date would, but for this provision, be
capable of being made either in the Euro or in the
applicable National Currency Unit, such Advance shall be
made in the Euro.
(ii) each Lender may, in its sole discretion, make bids to make
Competitive Bid Loans in the Agreed Currencies to the
Borrowers in accordance with Section 2.3; and
(iii) in no event may the Dollar Amount of the sum of the aggregate
principal amount of all outstanding Advances to the
Borrowers (including both the Committed Advances and the
Competitive Bid Advances) exceed the Aggregate Commitment.
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The Dollar Amount of each Advance shall be established for the entire Interest
Period applicable thereto as of the first day of such Interest Period. Floating
Rate Loans may only be in Dollars.
2.1.2. Availability of Facility; Required Payments. Subject to the terms
and conditions set forth in this Agreement, the facility is available from the
date of this Agreement to the Termination Date, and a Borrower may borrow, repay
and reborrow at any time prior to the Termination Date. The Commitments to lend
hereunder shall expire on the Termination Date. All outstanding Advances and all
other unpaid Obligations shall be paid in full by the Borrowers on the
Termination Date.
2.2. Committed Advances.
2.2.1. Committed Advances. From and including the date of this Agreement
and prior to the Termination Date, each Lender severally agrees, on the terms
and conditions set forth in this Agreement, to make Committed Loans to the
Borrowers from time to time in amounts the Dollar Amount of which shall not
exceed in the aggregate at any one time outstanding the amount of its
Commitment. Each Committed Advance hereunder shall consist of borrowings made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment. The Committed Advances
shall be evidenced by the Committed Notes and shall be repaid as provided by the
terms of Section 2.1.2.
2.2.2. Types of Committed Advances. The Committed Advances may be Floating
Rate Advances or Eurocurrency Committed Advances, or a combination thereof,
selected by the Company in accordance with Sections 2.2.3 and 2.2.4.
2.2.3. Method of Selecting Types and Interest Periods for New Committed
Advances. The Company shall select the Type of Advance and, in the case of each
Fixed Rate Advance, the Interest Period applicable to each Committed Advance
from time to time. The Company shall give the Agent irrevocable notice (a
"Committed Borrowing Notice"), or, if such Borrower is a Borrowing Subsidiary,
the Company shall on behalf of such Borrowing Subsidiary give a Committed
Borrowing Notice, not later than 11:00 a.m. (Chicago time) on the Borrowing Date
of each Floating Rate Advance, three Business Days before the Borrowing Date for
each Eurocurrency Committed Advance in Dollars, and four Business Days before
the Borrowing Date for each Eurocurrency Committed Advance in an Agreed Currency
other than Dollars. A Committed Borrowing Notice shall specify:
(i) the Borrowing Date, which shall be a Business Day, of such
Committed Advance;
(ii) the aggregate amount of such Committed Advance;
(iii) the Type of Committed Advance selected and the currency
thereof in accordance with Section 2.1.1.(i);
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(iv) in the case of each Eurocurrency Committed Advance, the
Interest Period applicable thereto; and
(v) whether such Committed Advance is to be made to the Company or
to a specified Borrowing Subsidiary.
2.2.4. Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Fixed Rate Advances. Each Fixed Rate Advance of
any Type shall continue as a Fixed Rate Advance of such Type until the end of
the then applicable Interest Period therefor, at which time such Fixed Rate
Advance shall be automatically converted into a Floating Rate Advance unless the
applicable Borrower shall have given the Agent an irrevocable notice (a
"Conversion/Continuation Notice") requesting that, at the end of such Interest
Period, such Fixed Rate Advance either continue as a Fixed Rate Advance of such
Type for the same or another Interest Period or be converted into an Advance of
another Type. Subject to the terms of Sections 2.3.2 and 2.5.2, such Borrower
may elect from time to time to convert all or any part of an Advance of any Type
into any other Type or Types of Advances; provided that any conversion of any
Fixed Rate Advance shall be made on, and only on, the last day of the Interest
Period applicable thereto. The applicable Borrower shall give the Agent the
Conversion/Continuation Notice of each conversion of an Advance or continuation
of a Fixed Rate Advance not later than 10:00 a.m. (Chicago time) at least one
Business Day, in the case of a conversion into a Floating Rate Advance, or three
Business Days, in the case of a conversion into or continuation of a
Eurocurrency Advance, prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such Advance
is to be converted or continued and, in the case of a
conversion into or continuation of a Fixed Rate Advance, the
duration of the Interest Period applicable thereto.
2.3. Competitive Bid Advances.
2.3.1. Competitive Bid Option; Repayment of Competitive Bid Advances. In
addition to Committed Advances pursuant to Section 2.2, but subject to the terms
and conditions set forth in this Agreement (including, without limitation, the
limitation set forth in Section 2.1.1(iii) as to the maximum aggregate principal
amount of all outstanding Advances hereunder), the Company may, as set forth in
this Section 2.3, request the Lenders, prior to the Termination Date, to make
offers to make Competitive Bid Advances to the Company or any Borrowing
Subsidiary. Each Lender
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may, but shall have no obligation to, make such offers and the Company may, but
shall have no obligation to, accept any such offers in the manner set forth in
this Section 2.3. Competitive Bid Advances shall be evidenced by the Competitive
Bid Notes. Each Competitive Bid Advance shall be repaid in full by the
applicable Borrower on the last day of the Interest Period applicable thereto.
2.3.2. Competitive Bid Quote Request. When the Company or a Borrowing
Subsidiary wishes to request offers to make Competitive Bid Loans under Section
2.3, the Company shall, on its behalf or on behalf of a Borrowing Subsidiary,
transmit to the Agent by telex or telecopy a Competitive Bid Quote Request so as
to be received no later than (x) 3:00 p.m., London time, at least five Business
Days prior to the Borrowing Date proposed therein, in the case of a Eurocurrency
Auction in an Agreed Currency other than Dollars, (y) 10:00 a.m., Chicago time,
at least five Business Days prior to the Borrowing Date proposed therein, in the
case of a Eurocurrency Auction in Dollars or (z) 9:00 a.m., Chicago time, at
least one Business Day prior to the Borrowing Date proposed therein, in the case
of an Absolute Rate Auction, specifying:
(i) the proposed Borrowing Date for the proposed Competitive Bid
Advance;
(ii) the proposed currency of such Competitive Bid Advance, which
shall be an Agreed Currency in the case of a Eurocurrency
Auction or Dollars in the case of an Absolute Rate Auction;
provided that after giving effect to such Competitive Bid
Advance, the outstanding Advances shall be denominated in
not more than eight Agreed Currencies (including Dollars);
(iii) the aggregate principal amount of such Competitive Bid
Advance;
(iv) whether the Competitive Bid Quotes requested are to set
forth a Competitive Bid Margin or an Absolute Rate, or both;
(v) the Interest Period applicable thereto (which must end on or
prior to the Termination Date); and
(vi) whether such Competitive Bid Advance is to be made to the
Company or to a Borrowing Subsidiary.
The Company may request offers to make Competitive Bid Loans for more than one
Interest Period and for a Eurocurrency Auction and an Absolute Rate Auction but
for not more than one currency in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within five Business Days (or upon
reasonable prior notice to the Lenders, such other number of days as such
Borrower and the Agent may agree) of any other Competitive Bid Quote Request.
Each Competitive Bid Quote Request shall be in a minimum amount of $5,000,000 or
a larger multiple of $1,000,000 (or the Approximate Equivalent Amount if
denominated in an Agreed Currency other than Dollars); provided that upon giving
effect to such Competitive Bid
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Advance, the then aggregate outstanding principal Dollar Amount of all Advances
shall not exceed the aggregate amount of the Commitments then in effect. A
Competitive Bid Quote Request that does not conform substantially to the format
of Exhibit "C" hereto shall be rejected, and the Agent shall promptly notify the
Company of such rejection by telex or telecopy.
2.3.3. Invitation for Competitive Bid Quotes. Promptly upon receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.3.2,
the Agent shall send to each of the Lenders by telex or telecopy an Invitation
for Competitive Bid Quotes which shall constitute an invitation by the Company
to each Lender to submit Competitive Bid Quotes offering to make the Competitive
Bid Loans to which such Competitive Bid Quote Request relates in accordance with
Section 2.3.
2.3.4. Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid Loans in response to
any Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this Section 2.3.4 and must be submitted to
the Agent by telex or telecopy at its offices specified in or pursuant to
Article XIII not later than (a) (I) 2:45 p.m., London time, in the case of
First Chicago and (II) 3:00 p.m., London time, in the case of each other
Lender, at least four Business Days prior to the proposed Borrowing Date in
the case of a Eurocurrency Auction in an Agreed Currency other than
Dollars, or (b) (I) 12:45 p.m., Chicago time, in the case of First Chicago
and (II) 1:00 p.m., Chicago time, in the case of each other Lender, at
least four Business Days prior to the proposed Borrowing Date in the case
of a Eurocurrency Auction in Dollars, or (c) (I) 8:45 a.m., Chicago time,
in the case of First Chicago and (II) 9:00 a.m., Chicago time, in the case
of each other Lender, on the proposed Borrowing Date in the case of an
Absolute Rate Auction (or, in any such case upon reasonable prior notice to
the Lenders, such other time and date as the applicable Borrower and the
Agent may agree, provided that First Chicago shall always be required to
submit its Competitive Bid Quotes not less than fifteen minutes prior to
the other Lenders). Subject to Articles IV and VIII, any Competitive Bid
Quote so made shall be irrevocable except with the written consent of the
Agent given on the instructions of the applicable Borrower.
(ii) Each Competitive Bid Quote shall in any case specify:
(a) the proposed Borrowing Date, which shall be the same as that set
forth in the applicable Invitation for Competitive Bid Quotes, and, in the
case of a Eurocurrency Auction, the proposed currency of such Competitive
Bid Advance;
(b) the principal amount of the Competitive Bid Loan for which each
such offer is being made, (1) the Dollar Amount of which principal amount
may be greater than, less than or equal to the Commitment of the quoting
Lender, but in no case greater than the
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Aggregate Commitment, (2) which principal amount must be at least
$5,000,000 and an integral multiple of $1,000,000 (or the Approximate
Equivalent Amount if denominated in an Agreed Currency other than Dollars),
and (3) which principal amount may not exceed the principal amount of
Competitive Bid Loans for which offers were requested;
(c) in the case of a Eurocurrency Auction, the Competitive Bid Margin
offered for each such Competitive Bid Loan;
(d) the minimum or maximum amount, if any, of the Competitive Bid Loan
which may be accepted by the applicable Borrower and/or the limit, if any,
as to the aggregate principal amount of the Competitive Bid Loans from such
Lender which may be accepted by the applicable Borrower;
(e) in the case of an Absolute Rate Auction, the Absolute Rate offered
for each such Competitive Bid Loan;
(f) the applicable Interest Period; and
(g) the identity of the quoting Lender.
(iii) The Agent shall reject any Competitive Bid Quote that:
(a) is not substantially in the form of Exhibit "E" hereto or does not
specify all of the information required by Section 2.3.4(ii);
(b) contains qualifying, conditional or similar language, other than
any such language contained in Exhibit "E" hereto;
(c) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bid Quotes; or
(d) arrives after the time set forth in Section 2.3.4(i).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.3.4(iii), then the Agent shall notify the relevant Lender of such
rejection as soon as practicable.
2.3.5. Notice to the Company. The Agent shall promptly notify the Company,
either on behalf of the Company or on behalf of any Borrowing Subsidiary, of the
terms (i) of any Competitive Bid Quote submitted by a Lender that is in
accordance with Section 2.3.4 and (ii) of any Competitive Bid Quote that is in
accordance with Section 2.3.4 and amends, modifies or is otherwise inconsistent
with a previous Competitive Bid Quote submitted by such Lender with respect to
the same Competitive Bid Quote Request. Any such subsequent Competitive Bid
Quote shall be disregarded by the Agent unless such subsequent Competitive Bid
Quote specifically states
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that it is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Agent's notice to the Company shall specify the
aggregate principal amount and currency of Competitive Bid Loans for which
offers have been received for each Interest Period specified in the related
Competitive Bid Quote Request and the respective principal amounts and
Competitive Bid Margins or Absolute Rates, as the case may be, so offered.
2.3.6. Acceptance and Notice by the Borrowers. Subject to the receipt of
the notice from the Agent referred to in Section 2.3.5, not later than (i) 5:00
p.m., London time, at least four Business Days prior to the proposed Borrowing
Date in the case of a Eurocurrency Auction in a Agreed Currency other than
Dollars, (ii) 2:00 p.m. (Chicago time) at least three Business Days prior to the
proposed Borrowing Date, in the case of a Eurocurrency Auction in Dollars or
(iii) 10:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of
an Absolute Rate Auction, the Company shall notify the Agent, either on its own
behalf or on behalf of a Borrowing Subsidiary, of such Borrower's acceptance or
rejection of the offers so notified to it pursuant to Section 2.3.5; provided,
however, that the failure by the Company to give such notice to the Agent shall
be deemed to be a rejection of all such offers. In the case of acceptance, such
notice (a "Competitive Bid Borrowing Notice") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
applicable Borrower may accept or reject any Competitive Bid Quote in whole or
in part (subject to the terms of Section 2.3.4(ii)(d)); provided that:
(a) the aggregate principal amount of each Competitive Bid Advance
may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(b) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Absolute Rates, as the case may be;
and
(c) the applicable Borrower may not accept any offer of the type
described in Section 2.3.4(iii) or that otherwise fails to comply with the
requirements of this Agreement for the purpose of obtaining a Competitive
Bid Loan under this Agreement.
2.3.7. Allocation by the Agent. If offers are made by two or more Lenders
with the same Competitive Bid Margins or Absolute Rates, as the case may be, for
a greater aggregate principal amount than the amount in respect of which offers
are permitted to be accepted for the related Interest Period, the principal
amount of Competitive Bid Loans in respect of which such offers are accepted
shall be allocated by the Agent among such Lenders as nearly as possible (in
such multiples, not greater than $1,000,000 (or the Equivalent Amount if
denominated in an Agreed Currency other than Dollars), as the Agent may deem
appropriate) in proportion to the aggregate principal amount of such offers;
provided, however, that no Lender shall be allocated a portion of any
Competitive Bid Advance which is less than the minimum amount which such Lender
has indicated that it is willing to accept. Allocations by the Agent of the
amounts of Competitive Bid Loans shall be conclusive in the absence of manifest
error. The Agent shall promptly, but in any event on the same Business Day in
the case of Eurocurrency Bid Rate Advances, and by 11:00
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a.m. (Chicago time) in the case of Absolute Rate Advances, notify each Lender of
its receipt of a Competitive Bid Borrowing Notice and the aggregate principal
amount of such Competitive Bid Advance allocated to each participating Lender.
2.4. Fees.
2.4.1. Facility Fee. The Company and the Borrowing Subsidiaries hereby
jointly and severally agree to pay to the Agent for the account of the Lenders,
ratably in proportion to their Commitments, a facility fee at a rate per annum
equal to the Applicable Facility Fee Rate on the daily average amount of the
Commitments (without regard to the outstanding principal amount of the Loans),
which fee shall be payable quarterly in arrears on each Payment Date commencing
on December 31, 1998 and with a final payment due and payable on the Termination
Date.
2.4.2. Agency and Administration Fees. The Company and the Borrowing
Subsidiaries hereby jointly and severally agree to pay to the Agent for its sole
account such agency and administration fees as are heretofore and hereafter
agreed upon by the Company in writing.
2.5. General Facility Terms.
2.5.1. Method of Borrowing. On the Borrowing Date, each Lender shall make
available its Loan or Loans, if any, (i) if such Loan is denominated in Dollars,
not later than 2:00 p.m., Chicago time, in Federal or other funds immediately
available to the Agent, in Chicago, Illinois at its address specified in or
pursuant to Article XIII and, (ii) if such Loan is denominated in another
currency, not later than 12:00 noon, local time in the city of the Agent's
Euro-Currency Payment Office for such currency, in such funds as may then be
customary for the settlement of international transactions in such currency in
the city of and at the address of the Agent's Euro-Currency Payment Office for
such currency. Unless the Agent determines that any applicable condition
specified in Article IV has not been satisfied, the Agent will make the funds so
received from the Lenders available to the applicable Borrower at the Agent's
aforesaid address. Notwithstanding the foregoing provisions of this Section
2.5.1, to the extent that a Loan made by a Lender matures on the Borrowing Date
of a requested Loan, such Lender shall apply the proceeds of the Loan it is then
making to the repayment of principal of the maturing Loan.
2.5.2. Minimum Amount of Each Committed Advance. Each Committed Advance
shall be in the minimum amount of $5,000,000 and in integral multiples of
$1,000,000 if in excess thereof (or the Approximate Equivalent Amount if
denominated in an Agreed Currency other than Dollars); provided, however, that
any Floating Rate Advance may be in the aggregate amount of the unused Aggregate
Commitment.
2.5.3. Optional Principal Payments. The Company may from time to time pay
all of its outstanding Floating Rate Advances, or, in a minimum aggregate amount
of $5,000,000 (and in integral multiples of $1,000,000 if in excess thereof),
any portion of the outstanding Floating Rate
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Advances upon one Business Day's prior notice to the Agent. All such payments
shall be made in immediately available funds to the Agent at the Agent's address
specified in Article XIII or at any other Lending Installation of the Agent
specified by the Agent in accordance with Section 2.5.7 by noon (Chicago time)
on the date of payment. A Fixed Rate Advance may not be prepaid prior to the
last day of its applicable Interest Period without the prior consent of each
Lender which originally made such Loan, which consent may be given or withheld
at the Lender's sole and absolute discretion. Any prepayment of a Fixed Rate
Advance prior to the end of its applicable Interest Period shall be subject to
the indemnity provisions of Section 3.5.
2.5.4. Interest Rates; Interest Periods. Each Floating Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day from the
date such loan is made until it becomes due at a rate per annum equal to the
Floating Rate for such day. Each Eurocurrency Committed Loan shall bear interest
on the outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the Eurocurrency Rate applicable thereto.
Each Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Absolute Rate applicable thereto. Each Eurocurrency Bid Rate Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the Eurocurrency Bid
Rate applicable thereto. Provided, that for each day on which the Dollar Amount
of the outstanding principal amount of Advances (including Competitive Bid
Advances) exceeds 50% of the Aggregate Commitment, the Company and each
Borrowing Subsidiary hereby agree that (a) the Alternate Base Rate of all
Floating Rate Loans outstanding on such day, (b) the Applicable Margin of all
Eurocurrency Committed Loans outstanding on such day, (c) the Absolute Rate of
all Absolute Rate Loans outstanding on such day, and (d) the Competitive Bid
Margin for all Eurocurrency Bid Rate Loans outstanding on such day each shall be
increased by a per annum percentage amount equal to 0.10%. The Agent shall
maintain a record of the daily outstanding principal amount of Advances. Subject
to the provisions of Section 2.5.5, each Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the earlier of (i) the last day of such Interest Period or (ii) the
date of any earlier prepayment as permitted by Section 2.5.3, at the interest
rate determined as applicable to such Advance.
2.5.5. Rate after Maturity. Except as provided in the next sentence, any
Dollar-denominated Advance not paid at maturity, whether by acceleration or
otherwise, shall bear interest until paid in full at a rate per annum equal to
the Alternate Base Rate plus 2% per annum, payable upon demand. Any Advance
denominated in an Agreed Currency other than Dollars that is not paid at
maturity, whether by acceleration or otherwise, shall bear interest until paid
at the rate applicable thereto plus 2% per annum, payable upon demand. In the
case of a Dollar-denominated Fixed Rate Advance the maturity of which is
accelerated, such Fixed Rate Advance shall bear interest for the remainder of
the applicable Interest Period (or until paid if paid prior to the end of such
Interest Period), at the higher of the rate otherwise applicable to such Fixed
Rate Advance for such Interest Period plus 2% per annum or the Alternate Base
Rate plus 2% per annum. In the case of a Fixed Rate Advance denominated in an
Agreed Currency other
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than Dollars the maturity of which is accelerated, such Fixed Rate Advance shall
bear interest for the remainder of the applicable Interest Period (or until paid
if paid prior to the end of such Interest Period) at the rate otherwise
applicable to such Fixed Advance for such Interest Period plus 2% per annum.
2.5.6. Interest Payment Dates; Interest Basis. Interest accrued on each
Floating Rate Advance shall be payable on each Payment Date, on any date on
which such Floating Rate Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Fixed Rate Advance shall be
payable on the last day of its applicable Interest Period, on any date on which
such Fixed Rate Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Fixed Rate Advance having an Interest Period
longer than three months shall also be payable on the last day of each 90 day
interval (in the case of Absolute Rate Advances) or three-month interval (in the
case of Eurocurrency Committed Advances or Eurocurrency Bid Rate Advances)
during such Interest Period. Interest on Fixed Rate Loans and fees hereunder
shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest on Floating Rate Loans and Loans denominated in pounds sterling shall
be calculated for actual days elapsed on the basis of a 365-, or, when
applicable, 366-day year. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to noon (local time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.5.7. Method of Payment. Each Advance shall be repaid or prepaid in the
currency in which it was made in the amount borrowed and interest payable
thereon shall be paid in such currency. Notwithstanding the foregoing, with
effect on and from the Euro Implementation Date, Advances and interest payable
thereon formerly denominated in a National Currency Unit shall be paid in Euro
in immediately available, freely transferable, cleared funds to such account
with such bank in such principal financial center as the Agent shall have
specified for this purpose. Subject to the last sentence of Section 2.5.1, all
payments of principal, interest, and fees in Dollars hereunder shall be made by
noon (Chicago time) on the date when due in immediately available funds to the
Agent at the Agent's address specified pursuant to Article XIII, or at any other
Lending Installation of the Agent specified in writing by the Agent to the
Company and shall be made ratably among all Lenders in the case of fees and
payments in respect of Committed Advances and ratably among the applicable
Lenders in respect of Competitive Bid Advances. After the occurrence of a
Default, all payments of principal shall be applied ratably among all
outstanding Advances. Each payment delivered to the Agent for the account of any
Lender shall be delivered promptly by the Agent to such Lender in the same type
of funds which the Agent received at its address specified pursuant to Article
XIII or at any Lending Installation specified in a notice received by the Agent
from such Lender. All payments to be made by the Borrowers hereunder or under
the Notes in any currency other than Dollars shall be made in such currency on
the date due in such funds as may then be customary for the settlement of
international transactions in such currency for the account of the Agent, at its
Euro-Currency Payment Office
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for such currency. The Agent will promptly cause such payments to be distributed
to each Lender in like funds and currency. Notwithstanding the foregoing
provisions of this Section, if, after the making of any Advance in any currency
other than Dollars, currency control or exchange regulations are imposed in the
country which issues such currency with the result that different types of such
currency (the "New Currency") are introduced and the type of currency in which
the Advance was made (the "Original Currency") no longer exists or the
applicable Borrower is not able to make payment to the Agent for the account of
the Lenders in such Original Currency, then all payments to be made by the
applicable Borrower hereunder or under the Notes in such currency shall be made
in such amount and such type of the New Currency as shall be equivalent to the
amount of such payment otherwise due hereunder or under the Notes in the
Original Currency, it being the intention of the parties hereto that the
Borrowers take all risks of the imposition of any such currency control or
exchange regulations. In addition, notwithstanding the foregoing provisions of
this Section, if, after the making of any Advance in any currency other than
Dollars, the applicable Borrower is not able to make payment to the Agent for
the account of the Lenders in the type of currency in which such Advance was
made because of the imposition of any such currency control or exchange
regulation, then such Advance shall instead be repaid when due in Dollars in a
principal amount equal to the Dollar Amount (as of the date of repayment) of
such Advance.
2.5.8. Notes; Telephonic Notices. Each Lender is hereby authorized to
record on the schedule attached to each of its Notes, or otherwise record in
accordance with its usual practice, the date, the currency, the amount and the
maturity of each of its Loans of the type evidenced by such Note; provided,
however, that any failure to so record shall not affect the Company's
obligations under any Loan Document. The Company hereby authorizes the Lenders
and the Agent to extend or continue Advances, effect selections of Types of
Advances, transfer funds and submit Competitive Bid Quotes based on telephonic
notices made by any person or persons the Agent or any Lender in good faith
believes to be a Financial Officer or an officer, employee or agent of the
Company designated by a Financial Officer. The Company agrees to deliver
promptly to the Agent a written confirmation of each telephonic notice given by
the Company, signed by a Financial Officer. If the written confirmation differs
in any material respect from the action taken by the Agent and the Lenders, the
records of the Agent and the Lenders shall govern absent manifest error.
2.5.9. Notification of Advances, Interest Rates and Prepayments. Promptly
after receipt thereof, the Agent will notify each Lender of the contents of each
Aggregate Commitment reduction notice, Committed Borrowing Notice,
Conversion/Continuation Notice, Competitive Bid Borrowing Notice, and repayment
notice received by it hereunder. The Agent will notify each Lender of the
interest rate applicable to each Fixed Rate Advance promptly upon determination
of such interest rate and will give each Lender prompt notice of each change in
the Alternate Base Rate.
2.5.10. Non-Receipt of Funds by the Agent. Unless the Company or a
Borrowing Subsidiary or a Lender, as the case may be, notifies the Agent prior
to the date on which it is
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scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Company or a Borrowing Subsidiary,
a payment of principal, interest or fees to the Agent for the account of the
Lenders, that it does not intend to make such scheduled payment, the Agent may
assume that such scheduled payment has been made. The Agent may, but shall not
be obligated to, make the amount of such scheduled payment available to the
intended recipient in reliance upon such assumption. If such Lender or the
Company, as the case may be, has not in fact made such scheduled payment to the
Agent, the recipient of such scheduled payment shall, on demand by the Agent,
repay to the Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by the Agent until the date the Agent recovers such amount at
a rate per annum equal to (x) in the case of scheduled payment by a Lender, the
Federal Funds Effective Rate for such day or (y) in the case of scheduled
payment by the Company or a Borrowing Subsidiary, the interest rate applicable
to the relevant Loan.
2.5.11. Termination, Reduction or Increase in the Aggregate Commitments.
(i) Termination or Reduction. The Company may at any time after the date
hereof cancel the Aggregate Commitment, in whole, or in a minimum aggregate
amount of $25,000,000 and in integral multiples of $1,000,000 if in excess
thereof, ratably among the Lenders upon at least three Business Days' prior
written notice to the Agent, which notice shall specify the amount of such
reduction; provided, however, no such notice of cancellation shall be effective
to the extent that it would reduce the Aggregate Commitment to an amount which
would be less than the outstanding principal amount of Loans outstanding at the
time such cancellation is to take effect. The Aggregate Commitment once reduced
as provided in this Section 2.5.11(i) may only be reinstated as specifically
provided in Section 2.5.11(ii) below. If (x) any Lender notifies the Company in
accordance with Section 2.5.15, (y) a Borrower reasonably determines that it is
or will be required to make any additional payment to any Lender under Section
3.1, 3.2 or 3.3 or (z) any Lender refuses a Borrower's request pursuant to
Section 6.2 to consent to fund an Acquisition other than a Friendly Acquisition,
then the Company may, at any time thereafter (provided that no Default or
Unmatured Default then exists and no satisfactory solution has been reached
pursuant to Section 3.6) and by not less than five Business Days' prior written
notice to the Agent, cancel such Lender's Commitment, whereupon such Lender
shall cease to be obliged to make further Loans hereunder and its Commitment
shall be reduced to zero. Upon termination of such Lender's Commitment, each
applicable Borrower shall, subject to the last sentence of this subparagraph
(i), pay all outstanding Obligations owing to such Lender. Any notice of
cancellation given pursuant to this Section 2.5.11 shall be irrevocable and
shall specify the date upon which such cancellation is to take effect.
Notwithstanding any such cancellation, the obligations of the Company under
Sections 3.1, 3.2, 3.3 and 10.6 shall survive any such cancellation and be
enforceable by such Lender. In any case described in clauses (i)(x) through
(i)(z) above in which the Company has the right to cancel a Lender's Commitment,
the Company may, in connection with such cancellation, either (1) arrange for a
sale (at par) of such Commitment and all outstanding Loans held by such Lender
pursuant to the terms of Section 13.3 and such Lender will promptly enter into
any such sale arranged by the Company or (2) offer such Commitment and all
outstanding Loans held by
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such Lender to all of the other Lenders pursuant to the procedure set forth in
Section 2.5.11(ii) below.
(ii) Increase in the Aggregate Commitment. (a) The Company may at any
time, by notice to the Agent, propose that the Aggregate Commitment be increased
(the amount of such increase being a "Commitment Increase"), effective as at a
date prior to the Termination Date (an "Increase Date") as to which agreement is
to be reached by an earlier date specified in such notice (a "Commitment Date");
provided, however, that (A) the Company may not propose more than two Commitment
Increases in any calendar year, (B) the minimum proposed Commitment Increase per
notice shall be $10,000,000, (C) in no event shall the Aggregate Commitment at
any time exceed $800,000,000, and (D) no Default or Unmatured Default shall have
occurred and be continuing on such Increase Date. The Agent shall notify the
Lenders thereof promptly upon its receipt of any such notice. The Agent agrees
that it will cooperate with the Company in discussions with the Lenders and
other Eligible Banks with a view to arranging the proposed Commitment Increase
through the increase of the Commitments of, first, one or more of the Lenders
(each such Lender that is willing to increase its Commitment hereunder being an
"Increasing Lender") and, if the existing Lenders are not willing, in the
aggregate, to increase their Commitments by the amount of the requested
Commitment Increase, then by the addition of one or more other Eligible Banks
(each an "Assuming Lender"), with the consent of the Agent (which consent shall
not be unreasonably withheld), as Lenders and as parties to this Agreement;
provided, however, that it shall be in each Lender's sole discretion whether to
increase its Commitment hereunder in connection with the proposed Commitment
Increase; and provided further that the minimum Commitment of each Assuming
Lender that becomes a party to this Agreement pursuant to this Section
2.5.11(ii) shall be at least equal to $10,000,000. If the Increasing Lenders
agree to increase their respective Commitments by an aggregate amount in excess
of the proposed Commitment Increase, the proposed Commitment Increase shall be
allocated among such Increasing Lenders in proportion to their respective
Commitments immediately prior to the Increase Date. If agreement is reached on
or prior to the applicable Commitment Date with any Increasing Lenders and
Assuming Lenders as to a Commitment Increase (which may be less than but not
greater than specified in the applicable notice from the Company), such
agreement to be evidenced by a notice in reasonable detail from the Company to
the Agent on or prior to the applicable Commitment Date, such Assuming Lenders,
if any, shall become Lenders hereunder as of the applicable Increase Date and
the Commitments of such Increasing Lenders and such Assuming Lenders shall
become or be, as the case may be, as of the Increase Date, the amounts specified
in such notice; provided that:
(x) the Agent shall have received (with copies for each Lender,
including each such Assuming Lender) by no later than 10:00 A.M. (Chicago
time) on the applicable Increase Date a certificate of a Financial
Officer, (1) stating that the Board of Directors of the Company has
adopted resolutions authorizing the Company to borrow money pursuant to
this Agreement from time to time in an aggregate principal amount at any
one time outstanding in an amount at least equal to the Aggregate
Commitment, after giving effect to the pending Commitment Increase, and
that such resolutions remain in full force and
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effect and have not been modified or rescinded or attaching and
certifying, if applicable, any amendments to such resolutions or
supplemental borrowing resolutions (together with a similar certificate
from an authorized officer of each Borrowing Subsidiary, if any are then
parties to this Agreement);
(y) each such Assuming Lender shall have delivered to the Agent,
by no later than 10:00 A.M. (Chicago time) on such Increase Date, an
appropriate Lender Assumption Agreement in substantially the form of
Exhibit "J" hereto, duly executed by such Assuming Lender and the
Company; and
(z) each such Increasing Lender shall have delivered to the Agent
by, no later than 10:00 A.M. (Chicago time) on such Increase Date, (A)
its existing Committed Note and (B) confirmation in writing satisfactory
to the Agent as to its increased Commitment.
(b) In the event that the Agent shall have received notice from
the Company as to its agreement to a Commitment Increase on or prior to the
applicable Commitment Date and each of the actions provided for in clauses
(a)(x) through (a)(z) above shall have occurred prior to 10:00 A.M. (Chicago
time) on the applicable Increase Date to the satisfaction of the Agent, the
Agent shall promptly notify the Lenders (including any Assuming Lenders) and the
Company of the occurrence of such Commitment Increase and shall record in its
records the relevant information with respect to each Increasing Lender and
Assuming Lender. Each Increasing Lender and each Assuming Lender shall, before
2:00 P.M. (Chicago time) on the applicable Increase Date, make available to the
Agent in accordance with the provisions of Section 2.5.1, in same day funds, in
the case of such Assuming Lender, an amount equal to such Assuming Lender's
ratable portion of the Committed Advances then outstanding (calculated based on
its Commitment as a percentage of the Aggregate Commitment after giving effect
to the relevant Commitment Increase) and, in the case of such Increasing Lender,
an amount equal to the excess of (i) such Increasing Lender's ratable portion of
the Committed Advances then outstanding after giving effect to the relevant
Commitment Increase over (ii) such Increasing Lender's ratable portion of the
Committed Advances then outstanding before giving effect to the relevant
Commitment Increase. After the Agent's receipt of such funds from each such
Increasing Lender and each such Assuming Lender, the Agent will, if necessary,
promptly thereafter cause to be distributed like funds to the other Lenders for
the account of their respective applicable Lending Installations in an amount to
each other Lender such that the aggregate amount of the outstanding Committed
Advances owing to each Lender after giving effect to such distribution equals
such Lender's ratable portion of the Committed Advances then outstanding after
giving effect to the relevant Commitment Increase. After the Company receives
notice from the Agent, the Company, at its own expense, shall execute and
deliver to the Agent (1) Committed Notes payable to the order of each Assuming
Lender, if any, and each Increasing Lender, dated as of the applicable Increase
Date, in a principal amount equal to such Lender's Commitment after giving
effect to the relevant Commitment Increase, and substantially in the form of
Exhibit "A-1" and (2) Competitive Bid Notes payable to the order of each
Assuming Lender, if any, dated as of the applicable Increase Date, and
substantially in the form of Exhibit "A-2". The Agent, upon receipt of such
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Notes, shall promptly deliver such Notes to the respective Assuming Lenders and
Increasing Lenders.
(c) In the event that the Agent shall not have received notice
from the Company as to such agreement on or prior to the applicable Commitment
Date or the Company shall, by notice to the Agent prior to the applicable
Increase Date, withdraw its proposal for a Commitment Increase or any of the
actions provided for above in clauses (a)(x) through (a)(z) shall not have
occurred by 10:00 A.M. (Chicago time) on the such Increase Date, such proposal
by the Company shall be deemed not to have been made. In such event, any actions
theretofore taken under clauses (a)(x) through (a)(z) above shall be deemed to
be of no effect and all the rights and obligations of the parties shall continue
as if no such proposal had been made.
2.5.12. Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in Article II with respect to any Advance in any currency
other than Dollars, if there shall occur on or prior to the date of such Advance
any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would in the
reasonable opinion of the Agent or the Required Lenders make it impracticable
for the Eurocurrency Committed Loans or Eurocurrency Bid Rate Loans comprising
such Advance to be denominated in the currency specified by the applicable
Borrower, then the Agent shall forthwith give notice thereof to the Company and
the Lenders, and such Loans shall not be denominated in such currency but shall
be made on the such Borrowing Date in Dollars, in an aggregate principal amount
equal to the Dollar Amount of the aggregate principal amount specified in the
related Committed Borrowing Notice or Competitive Bid Quote Request, as the case
may be, as Floating Rate Loans, unless the applicable Borrower notifies the
Agent at least one Business Day before such date that (i) it elects not to
borrow on such date or (ii) it elects to borrow on such date in a different
Agreed Currency, as the case may be, in which the denomination of such Loans
would in the opinion of the Agent and the Required Lenders be practicable and in
an aggregate principal amount equal to the Dollar Amount of the aggregate
principal amount specified in the related Committed Borrowing Notice or
Competitive Bid Quote Request, as the case may be.
2.5.13. Lending Installations. Subject to Section 3.6, each Lender may,
by written, telex or telecopy notice to the Agent and the Company, book its
Loans at any Lending Installation selected by such Lender and may from time to
time, change its Lending Installation and for whose account Loan payments are to
be made. Each Lender will notify the Agent and the Company on or prior to the
date of this Agreement of the Lending Installation which it intends to utilize
for each type of Loan hereunder.
2.5.14. Borrowing Subsidiaries. The Company may at any time or from time
to time, with the consent of the Agent, which consent shall not be unreasonably
withheld, add as a party to this Agreement any Subsidiary to be a "Borrowing
Subsidiary" hereunder by the execution and delivery to the Agent of a duly
completed Assumption Letter by such Subsidiary, with the written consent of the
Company at the foot thereof. Upon such execution, delivery and consent such
Subsidiary shall for all purposes be a party hereto as a Borrowing Subsidiary as
fully as if it had
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executed and delivered this Agreement. So long as the principal of and interest
on any Advances made to any Borrowing Subsidiary under this Agreement shall have
been repaid or paid in full and all other obligations of such Borrowing
Subsidiary under this Agreement shall have been fully performed, the Company
may, by not less than five Business Days' prior notice to the Agent (which shall
promptly notify the Lenders thereof), terminate such Borrowing Subsidiary's
status as a "Borrowing Subsidiary".
2.5.15. Withholding Tax Exemption. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to the
Company and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form 1001 or 4224 further undertakes to deliver to the
Company and the Agent two additional copies of such form (or a successor form)
on or before the date that such form expires (currently, three successive
calendar years for Form 1001 and one calendar year for Form 4224) or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Company or the Agent, in
each case certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender promptly advises the Company and the
Agent that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax. If any Lender so advises the
Company and the Agent of such fact, the Company shall be entitled to exercise
its rights under Section 2.5.11.
2.5.16. Judgment Currency. If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due from a Borrower hereunder or
under any of the Notes in the currency expressed to be payable herein or under
the Notes (the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase the specified currency with such other
currency at the Agent's main Chicago office on the Business Day preceding that
on which final, non-appealable judgment is given. The obligations of the
applicable Borrower in respect of any sum due to any Lender or the Agent
hereunder or under any Note shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Agent (as the case may be)
of any sum adjudged to be so due in such other currency such Lender or the Agent
(as the case may be) may in accordance with normal, reasonable banking
procedures purchase the specified currency with such other currency. If the
amount of the specified currency so purchased is less than the sum originally
due to such Lender
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or the Agent, as the case may be, in the specified currency, the applicable
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Agent, as the case may be, against such loss, and if the amount of
the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Agent, as the case may be, in the specified currency and (b) any
amounts shared with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under Section 12.2, such Lender or the
Agent, as the case may be, agrees to remit such excess to the applicable
Borrower.
2.5.17. Extension of Termination Date. The Company may request an
extension of the then current Termination Date for a period of one year by
submitting a request for an extension to the Agent (an "Extension Request") not
more than 60 days, but not less than 30 days, prior to each yearly anniversary
of the Restructuring Date. Promptly upon receipt of an Extension Request, the
Agent shall deliver a copy thereof to the Lenders. Each Lender may, by an
irrevocable notice (a "Consent Notice") to the Company and the Agent given
within 30 days after receipt of the Extension Request by the Agent, consent to
such Extension Request by the Company, which consent may be given or withheld by
each Lender in its sole discretion. Failure by any Lender to give its consent in
writing within such 30 day period shall be deemed a refusal by such Lender of
such Extension Request. If such Extension Request is consented to by all of the
Lenders, the Termination Date shall be extended as requested by the Company. If
such Extension Request is not consented to by Lenders holding at least 66-2/3%
of the Aggregate Commitment, the Company's request shall be denied and the
Termination Date shall remain unchanged. If the Company's request is consented
to by Lenders holding at least 66-2/3% but less than 100% of the Aggregate
Commitment, (a) the Termination Date shall be extended with respect to those
Lenders who have consented to such Extension Request and (b) the Termination
Date with respect to each non-consenting Lender shall remain unchanged, provided
that the Company may (x) arrange for a sale (at par) of the Commitment and all
outstanding Loans held by any such nonconsenting Lender pursuant to the terms of
Section 13.3 and any such non-consenting Lender will promptly enter into any
such sale arranged by the Company or (y) offer such Commitment and all
outstanding Loans held by such Lender to all of the other Lenders pursuant to
the procedure set forth in Section 2.5.11(ii) for an increase in the Aggregate
Commitment. The Agent will promptly notify the Lenders of any extension of the
Termination Date pursuant to the provisions of this Section 2.5.17.
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ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Taxes.
3.1.1. Payments to be Free and Clear. All sums payable by each Borrower
under the Loan Documents, whether in respect of principal, interest, fees or
otherwise, shall be paid without deduction for any present and future taxes,
levies, imposts, deductions, charges or withholdings imposed by any government
or any political subdivision or taxing authority thereof (but excluding any tax
on or measured by the net income, profits or gains of any Lender) and all
interest, penalties or similar liabilities with respect thereto (collectively,
"taxes"), which amounts shall be paid by the applicable Borrower as provided in
Section 3.1.2. below. The applicable Borrower will pay each Lender the amounts
necessary such that the net amount of the principal, interest, fees or other
sums received and retained by each Lender is not less than the amount payable
under this Agreement.
3.1.2. Grossing-up of Payments. If: (a) any Borrower or any other Person
is required by law to make any deduction or withholding on account of any such
tax or other amount from any sum paid or expressed to be payable by the
applicable Borrower to any Lender under this Agreement; or (b) any party to this
Agreement (or any Person on its behalf) other than any Borrower is required by
law to make any deduction or withholding from, or (other than on account of tax
on the overall net income of that party) any payment on or calculated by
reference to the amount of, any such sum received or receivable by any Lender
under this Agreement:
(i) the applicable party shall notify the Agent and, if such party
is not the applicable Borrower, the Agent will notify the applicable
Borrower of any such requirement or any change in any such requirement as
soon as such party becomes aware of it;
(ii) the applicable Borrower shall pay any such tax or other amount
before the date on which penalties attached thereto become due and
payable, such payment to be made (if the liability to pay is imposed on
such Borrower) for its own account or (if that liability is imposed on
any party to this Agreement) on behalf of and in the name of that party;
(iii) the sum payable by the applicable Borrower in respect of which
the relevant deduction, withholding or payment is required shall (except,
in the case of any such payment, to the extent that the amount thereof is
not ascertainable when that sum is paid) be increased to the extent
necessary to ensure that, after the making of that deduction, withholding
or payment, that party receives on the due date and retains (free from
any liability in respect of any such deduction, withholding or payment) a
sum equal to that
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which it would have received and so retained had no such deduction,
withholding or payment been required or made; and
(iv) within thirty (30) days after payment of any sum from which the
applicable Borrower is required by law to make any deduction or
withholding, and within thirty (30) days after the due date of payment of
any tax or other amount which it is required by paragraph (ii) to pay, it
shall deliver to the Agent all such certified documents and other
evidence as to the making of such deduction, withholding or payment as
(a) are satisfactory to the affected parties as proof of such deduction,
withholding or payment and of the remittance thereof to the relevant
taxing or other authority and (b) are required by any such party to
enable it to claim a tax credit with respect to such deduction,
withholding or payment.
3.2. Increased Costs. If, at any time after the date of this Agreement,
the adoption of any law or the application of any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any change therein, or any change in the
interpretation or administration thereof, or the compliance of any Lender
therewith,
(i) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Committed Advances bearing interest at a
Fixed Rate), or
(ii) imposes any other condition (not being a tax imposed, levied,
collected, withheld or assessed by any taxing authority), the result of
which is to increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining such Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation in
connection with such Loans, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to the
amount of such Loans held or interest received by it, by an amount deemed
material by such Lender,
then, within 15 days of demand by such Lender, the applicable Borrower shall pay
such Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is attributable to making, funding
and maintaining its Loans and its Commitment.
3.3. Changes in Capital Adequacy Regulations. If a Lender reasonably
determines that the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender attributable to this Agreement, the Loans or its
obligation to make Loans hereunder is increased as a result of a Change (as
hereafter defined), then, within 15 days of demand by such Lender (with a copy
of such demand to the Agent), the Company shall pay such Lender the amount which
such Lender
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determines is necessary to compensate it for any reduction in the rate of return
on capital to an amount below that which such Lender could have achieved but for
such Change and is attributable to this Agreement, the Loans or its obligation
to make Loans hereunder. "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines (as hereafter defined) or (ii)
any adoption of or change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.4. Availability of Types of Advances. If the Required Lenders
reasonably determine that (i) deposits of a type and maturity appropriate to
match fund Committed Advances bearing interest at a Fixed Rate are not available
or (ii) the interest applicable to a Type of Committed Advance does not
accurately reflect the cost of making or maintaining such Committed Advance,
then the Agent shall suspend the availability of the affected Type of Committed
Advance. If any Lender determines that maintenance of its Eurocurrency Loans
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, then such Lender may by notice to the applicable
Borrower, through the Agent, require that any of its Eurocurrency Loans be
promptly converted to an unaffected Type of Loan until such illegality shall
cease; and thereafter, any request for a Eurocurrency Committed Loan shall, with
respect to such Lender, be deemed a request for a Floating Rate Loan.
3.5. Funding Indemnification. If any payment of a Fixed Rate Loan occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise (including, without limitation,
any receipt by a Lender of all or a portion of the principal of a Loan prior to
the last day of the applicable Interest Period as a result of a sale arranged by
the Company pursuant to Sections 2.5.11, 2.5.17 or 6.2) or a Fixed Rate Advance
is not made on the date specified by the applicable Borrower for any reason
other than default by the Lenders, such Borrower will indemnify each Lender for
any loss or cost incurred by it resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the Fixed Rate Advance.
3.6. Mitigation of Additional Costs or Adverse Circumstances. If, in
respect of any Lender, circumstances arise which would or would upon the giving
of notice result in:
(a) an increase in the liability of a Borrower to such Lender
under Section 3.1, 3.2 or 3.3 or
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(b) the unavailability of a Type of Committed Loan under Section
3.4;
then, without in any way limiting, reducing or otherwise qualifying the
applicable Borrower's obligations under any of the clauses referred to above in
this Section 3.6, such Lender shall promptly upon becoming aware of the same
notify the Agent thereof and shall, in consultation with the Agent and the
Company and to the extent that it can do so without prejudice to its own
position, take such reasonable steps as may be reasonably open to it to mitigate
the effects of such circumstances (including, without limitation, (i) the
transfer of its Loans to a Lending Installation in another jurisdiction, (ii)
the assignment of its rights and obligations hereunder to an Eligible Bank
willing to participate in this facility or (iii) the restructure of its
participation in this facility in a manner which will avoid the event in
question and on terms mutually acceptable to such Lender, the Agent and the
Company). If and so long as a Lender has been unable to take, or has not taken,
steps acceptable to the Company to mitigate the effect of the circumstances in
question, such Lender shall be obliged, at the request of the Company, to assign
all its rights and obligations hereunder to an Eligible Bank nominated by the
Company with the approval of the Agent and willing to participate in the
facility in place of such Lender; provided that such Eligible Bank satisfies all
of the requirements of this Agreement including, but not limited to, providing
the forms required by Sections 2.5.15 and 13.3.2. Notwithstanding any such
assignment, the obligations of the Company under Sections 3.1, 3.2, 3.3 and 10.6
shall survive any such assignment and be enforceable by such Lender.
3.7. Lender Statements; Survival of Indemnity. Each Lender shall deliver
a written statement of such Lender as to the amount due, if any, under Section
3.1, 3.2, 3.3 or 3.5. Such written statement shall set forth in reasonable
detail the event by reason of which such Lender is entitled to make a claim for
such amount and the calculations upon which such Lender determined such amount,
which shall be final, conclusive and binding on the applicable Borrower in the
absence of manifest error. Determination of amounts payable under such Sections
in connection with a Fixed Rate Loan shall be calculated as though each Lender
funded its Fixed Rate Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
Fixed Rate applicable to such Loan, whether in fact that is the case or not.
Unless otherwise provided herein, the amount specified in the written statement
shall be payable on demand after receipt by the applicable Borrower of the
written statement. Notwithstanding any contrary provision of this Article III,
no Borrower shall be required to make any payments to any Lender pursuant to
Sections 3.2 or 3.3 with respect to periods of time more than 60 days prior to
date upon which such Lender's written statement in accordance with the terms of
this Section 3.7 is first delivered to the applicable Borrower. The obligations
of such Borrower under Sections 3.1, 3.2, 3.3 and 3.5 shall survive payment of
any other of such Borrower's Obligations and the termination of this Agreement.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance. No Lender shall be required to make the initial
Advance hereunder unless (x) the Borrowers have paid in full all Obligations
under (and as defined in) the Original Credit Facility which would be due and
payable upon termination of such Original Credit Facility, and the Aggregate
Commitment (as defined in the Original Credit Facility) of the lenders
thereunder shall have been terminated and (y) the Company has furnished or
caused to be furnished to the Agent with sufficient copies for the Lenders:
(i) Copies of the certificate of incorporation of the Company,
together with all amendments, and a certificate of good
standing, both certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary
of the Company, of its by-laws and of its Board of
Directors' resolutions (and resolutions of other bodies, if
any are deemed necessary by counsel for any Lender)
authorizing the execution of the Loan Documents.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Company, which shall identify by
name and title and bear the signature of the officers of
the Company authorized to sign the Loan Documents and to
make borrowings hereunder, upon which certificate the Agent
and the Lenders shall be entitled to rely until informed of
any change in writing by the Company.
(iv) A certificate, signed by the Financial Officer of the
Company, stating that on the initial Borrowing Date no
Default or Unmatured Default has occurred and is
continuing.
(v) A certificate, signed by the Financial Officer of the
Company, stating that on the initial Borrowing Date the
representations and warranties contained in the Loan
Documents are true and correct in all material respects.
(vi) A written opinion of the Company counsel, addressed to each
of the Lenders, in substantially the form of Exhibit "B-1"
hereto.
(vii) The Committed Notes payable to the order of each of the
Lenders.
(viii) Such other documents as any Lender or its counsel may have
reasonably requested.
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4.2. Initial Advance to Each Borrowing Subsidiary. No Lender shall be
required to make an Advance hereunder to a Borrowing Subsidiary unless the
Company has furnished or caused to be furnished to the Agent with sufficient
copies for the Lenders:
(i) The Assumption Letter executed and delivered by such
Borrowing Subsidiary and containing the written consent of
the Company at the foot thereof, as contemplated by Section
2.5.14.
(ii) Copies, certified by the Secretary or Assistant Secretary
of the Borrowing Subsidiary, of its Board of Directors'
resolutions (and resolutions of other bodies, if any are
deemed necessary by counsel for any Lender) approving the
Assumption Letter.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrowing Subsidiary, which
shall identify by name and title and bear the signature of
the officers of such Borrowing Subsidiary authorized to
sign the Assumption Letter and the other documents to be
executed and delivered by such Borrowing Subsidiary
hereunder, upon which certificate the Agent and the Lenders
shall be entitled to rely until informed of any change in
writing by the Company.
(iv) An opinion of counsel to such Borrowing Subsidiary,
substantially in the form of Exhibit "B-2" hereto.
(v) The Committed Notes payable to the order of each of the
Lenders.
4.3. Each Advance. No Lender shall be required to make any Advance
(including, without limitation, the initial Advance hereunder), unless on the
applicable Borrowing Date:
(i) Prior to and after giving effect to such Advance there exists no
Default or Unmatured Default.
(ii) The representations and warranties contained in the Loan Documents
are true and correct in all material respects as of such Borrowing
Date (except Sections 5.5 and 5.7 and such other representations
and warranties which expressly relate solely to, and were true and
correct in all material respects as of, an earlier date).
(iii) All legal matters incident to the making of such Advance shall be
reasonably satisfactory to the Lenders and their counsel.
Each borrowing of a Committed Advance or a Competitive Bid Advance shall
constitute a representation and warranty by the applicable Borrower that the
conditions contained in Section 4.3(i) and (ii) have been satisfied.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Company and its
Material Subsidiaries is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
5.2. Authorization and Validity. The Company has the corporate power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Company of
the Loan Documents and the performance of its obligations thereunder have been
duly authorized by proper corporate proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Company enforceable
against it in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and delivery
by the Company of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Company or any of its Material Subsidiaries or the Company's or
any Material Subsidiary's articles of incorporation or by-laws or the provisions
of any indenture, instrument or agreement to which the Company or any of its
Material Subsidiaries is a party or is subject, or by which it, or its Property,
is bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of the Company or a
Material Subsidiary pursuant to the terms of any such indenture, instrument or
agreement, in any such case which violation, conflict, default, creation or
imposition could reasonably be expected to have a Material Adverse Effect. No
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the Loan
Documents.
5.4. Financial Statements. The December 31, 1997 financial statements of
the Company and its Consolidated Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the financial condition of the Company and its Consolidated Subsidiaries
at such date and the results of their operations for the period then ended.
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5.5. Material Adverse Change. Since December 31, 1997, there has been no
change in the business, Property, condition (financial or otherwise) or results
of operations of the Company and its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
5.6. Taxes. The Company and its Material Subsidiaries have filed all
United States federal income tax returns and all other material tax returns
which are required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by the Company or any of its
Material Subsidiaries, except such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided. The United States
consolidated income tax returns of the Company and its Material Subsidiaries
have been audited by the Internal Revenue Service through the fiscal year ended
December 31, 1993. The charges, accruals and reserves on the books of the
Company and its Material Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.7. Litigation. There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its Material
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
5.8. Material Subsidiaries. An accurate listing of all of the
Subsidiaries of the Company is set forth on the Company's most recent annual
report filed with the United States Securities and Exchange Commission on Form
10-K/A. Schedule II hereto contains an accurate list of all of the presently
existing Material Subsidiaries of the Company, setting forth their respective
jurisdictions of incorporation and the percentage of their respective capital
stock owned by the Company or other Subsidiaries. All of the issued and
outstanding shares of capital stock of the Material Subsidiaries have been duly
authorized and issued and are fully paid and non-assessable.
5.9. ERISA. Each Plan complies in all material respects with all
applicable requirements of law and regulations. On an aggregate basis, there are
no Unfunded Liabilities. No Reportable Event has occurred with respect to any
Plan, neither the Company nor any other members of the Controlled Group has
withdrawn from any Plan or initiated steps to do so, and no steps have been
taken to reorganize or terminate any Plan, in any such case which could
reasonably be expected to have a Material Adverse Effect.
5.10. Full Disclosure. The financial statements referred to in Section
5.4 do not, nor do any other written statements furnished by the Company to the
Agent or the Lenders in connection with the negotiation of the Loan Documents
taken as a whole, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements contained therein, in
light of the circumstances in which they were made, not misleading as of the
dates thereof.
5.11. Title to Properties. The Company and each Material Subsidiary has
good and marketable title in fee simple (or its equivalent under applicable law)
to, or leasehold interest in, all the real property and has good title to all
the other property it purports to own or lease,
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including that reflected in the most recent balance sheet referred to in Section
5.4 except as sold or otherwise disposed of in the ordinary course of business
and except for Liens disclosed in notes to the financial statements referred to
in Section 5.4 or otherwise permitted by this Agreement.
5.12. Patents and Trademarks. The Company and each Material Subsidiary
owns or possesses all material patents, trademarks, trade names, service marks,
copyright, licenses and rights with respect to the foregoing necessary for the
present and planned future conduct of its business, without any known material
conflict with the rights of others.
5.13. No Defaults. No Default or Unmatured Default has occurred and is
continuing. The Company is not in default in the payment of principal or
interest on any Indebtedness in excess of $25,000,000 (or the Equivalent Amount
of Indebtedness if denominated in a currency other than Dollars) in the
aggregate, is not in default under any instrument or instruments or agreements
under and subject to which such Indebtedness has been issued, no event has
occurred and is continuing under the provisions of any such instrument or
agreement which with the lapse of time or the giving of notice, or both, would
constitute an event of default thereunder and the Company is not in violation of
any term of its articles of incorporation.
5.14. Investment Company Act. Neither the Company nor any Subsidiary is
an "investment company" or an "affiliated person" thereof or an "affiliated
person" of such affiliated person as such terms are defined in the Investment
Company Act of 1940, as amended.
5.15. Compliance with Environmental Laws. Neither the Company nor any
Subsidiary has notice or knowledge of any violation of any applicable Federal,
state, or local laws, statutes, rules, regulations or ordinances relating to
public health, safety or the environment, including, without limitation,
relating to releases, discharges, emissions or disposals to air, water, land or
ground water, to the withdrawal or use of ground water, to the use, handling or
disposal of polychlorinated biphenyls (PCB's), asbestos or urea formaldehyde, to
the treatment, storage, disposal or management of hazardous substances
(including, without limitation, petroleum, crude oil or any fraction thereof, or
other hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous
or other controlled, prohibited or regulated substances which violation could
reasonably be expected to have a Material Adverse Effect. The total liability
arising out of any environmental matters, if adversely determined, would not
reasonably be expected to exceed a Substantial Portion.
5.16. Regulations U and X. Margin stock (as defined in Regulations U and
X) constitutes less than 25% of those assets of the Company and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
5.17. Contingent Obligations. Other than any liability incident to any
pending litigation, arbitration or proceedings, neither the Company nor any
Consolidated Subsidiary has material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.
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5.18. Year 2000. The Borrower has made a full and complete assessment of
the Year 2000 Issues and has a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program the Borrower does not reasonably
anticipate that Year 2000 Issues will have a Material Adverse Effect.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Company will maintain, for itself and each
Consolidated Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Agent, for distribution to the Lenders:
(i) Within 90 days after the close of each of its fiscal years,
an unqualified audit report certified by independent
certified public accountants, acceptable to the Lenders,
prepared in accordance with Agreement Accounting Principles
on a consolidated basis for itself and the Consolidated
Subsidiaries, including balance sheets as of the end of
such period, related profit and loss and reconciliation of
surplus statements, and a statement of cash flows,
accompanied by a certificate of said accountants that, in
the course of their examination necessary for their
certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in
the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof.
(ii) Within 60 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and the
Consolidated Subsidiaries, unaudited balance sheets as at
the close of each such period and consolidated and
consolidating profit and loss and reconciliation of surplus
statements and a statement of cash flows for the period
from the beginning of such fiscal year to the end of such
quarter, all certified by its Financial Officer.
(iii) Together with the financial statements required hereunder,
a compliance certificate in substantially the form of
Exhibit "I" hereto signed by its Financial Officer showing
the calculations necessary to determine compliance with
this Agreement and stating that no Default or Unmatured
Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
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(iv) Promptly upon the furnishing thereof to the shareholders of
the Company, copies of all financial statements, reports
and proxy statements so furnished.
(v) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or
other regular reports which the Company or any of its
Subsidiaries files with the Securities and Exchange
Commission.
(vi) Such other information (including non-financial
information) as the Agent or any Lender may from time to
time reasonably request.
6.2. Use of Proceeds. The Borrowers will use the proceeds of the
Advances made under this Agreement only for general corporate purposes
(including, without limitation, to provide liquidity in connection with the
issuance of commercial paper by the Company), to repay outstanding Advances or
Notes and for Acquisitions, provided that proceeds of Advances may not be used
for any Acquisition other than a Friendly Acquisition unless (i) in the case of
Committed Advances, all of the Lenders have given their prior written consent
and (ii) in the case of a Competitive Bid Advance, the Lender making such
Competitive Bid Advance has given its prior written consent. If any Lender does
not consent to a request by a Borrower to fund an Acquisition other than a
Friendly Acquisition with a Committed Advance, the Company may (x) arrange for a
sale (at par) of the Commitment and all outstanding Loans held by any such
non-consenting Lender pursuant to the terms of Section 13.3 and any such
non-consenting Lender will promptly enter into any such sale arranged by the
Company or (y) offer such Commitment and all outstanding Loans held by such
Lender to all of the other Lenders pursuant to the procedure set forth in
Section 2.5.11(ii) for an increase in the Aggregate Commitment. None of the
proceeds of the Advances shall be used in any manner which would violate or
cause any Lender to be in violation of Regulations T, U or X of the Board of
Governors of the Federal Reserve System.
6.3. Notice of Default. The Company will, and will cause each of its
Material Subsidiaries to, give prompt notice in writing to the Agent of the
occurrence of any Default or Unmatured Default.
6.4. Corporate Existence. The Company will, and will cause each Material
Subsidiary to, do all things necessary to remain duly incorporated, validly
existing and in good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted.
6.5. Taxes. The Company will, and will cause each Material Subsidiary
to, pay when due all material taxes, assessments and governmental charges and
levies upon it or its income, profits or Property, except those which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside.
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6.6. Insurance. The Company will, and will cause each Material
Subsidiary to, maintain with financially sound and reputable insurance companies
insurance on all their Property in such amounts and covering such risks as is
consistent with sound business practice.
6.7. Compliance with Laws. The Company will, and will cause each
Material Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, which, if
violated, could reasonably be expected to have a Material Adverse Effect.
6.8. Inspection. The Company will, and will cause each Material and
Borrowing Subsidiary to, permit the Lenders, by their respective representatives
and agents, to inspect any of the Properties, corporate books and financial
records of the Company and each such Subsidiary, to examine and make copies of
the books of accounts and other financial records of the Company and each such
Subsidiary, and to discuss the affairs, finances and accounts of the Company and
each such Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Lenders may designate,
provided that, after the occurrence and during the continuance of a Default, the
preceding references to "each Material and Borrowing Subsidiary" and "such
Subsidiary" shall be deemed to refer to each Subsidiary of the Company, whether
or not such Subsidiary is a Borrowing Subsidiary or a Material Subsidiary.
6.9. Sale of Assets; Merger and Consolidation. The Company will not, nor
will it permit any Consolidated Subsidiary to, (a) sell, lease or otherwise
transfer, directly or indirectly, assets which, when aggregated with all other
such transfers during the term of this Agreement, would constitute more than 50%
of the consolidated assets of the Company and its Consolidated Subsidiaries as
of the date of this Agreement or (b) merge or consolidate with or into or enter
into any analogous reorganization or transaction with any other person, except:
(i) Any Consolidated Subsidiary or other corporation may merge
or consolidate with the Company, provided that after giving
effect to any such merger or consolidation, (x) the Company
shall be the continuing or surviving corporation and (y) no
Default or Unmatured Default shall exist,
(ii) Any Consolidated Subsidiary may merge or consolidate with
any other Consolidated Subsidiary,
(iii) Any other corporation may merge or consolidate with any
Consolidated Subsidiary, provided that after giving effect
to any such merger or consolidation, (x) the continuing or
surviving corporation shall be a Consolidated Subsidiary
and (y) no Default or Unmatured Default shall exist, and
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(iv) Sales, leases, transfers or other dispositions of assets by
Financial Subsidiaries shall not be restricted by the
provisions of this Section 6.9 and shall not count against
the 50% limit set forth herein.
6.10. Liens. The Company will not, nor will it permit any Consolidated
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Company or any Consolidated Subsidiary, except:
(i) Liens existing on the date of this Agreement securing
Indebtedness outstanding on the date of this Agreement;
(ii) any Lien existing on any Property of any corporation at the
time such corporation becomes a Consolidated Subsidiary and
not created in contemplation of such event, provided that
such Lien does not extend to or cover any Property of the
Company or any other Consolidated Subsidiary;
(iii) any Lien on any Property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the
cost of acquiring such Property, provided that such Lien
attaches to such Property concurrently with or within 120
days after the acquisition thereof and such Lien does not
extend to or cover any Property of the Company or any
Consolidated Subsidiary other than the Property then being
acquired;
(iv) any Lien on any Property of any other corporation existing
at the time such corporation is merged or consolidated with
or into the Company or a Consolidated Subsidiary and not
created in contemplation of such event, provided that such
Lien does not extend to or cover any Property of the
Company or any Consolidated Subsidiary other than the
Property of such other corporation;
(v) any Lien existing on any Property prior to the acquisition
thereof by the Company or a Consolidated Subsidiary and not
created in contemplation of such acquisition, provided that
such Lien does not extend to or cover any Property of the
Company or any Consolidated Subsidiary other than the
Property then being acquired;
(vi) any Lien arising out of the refinancing, extension, renewal
or refunding of any Indebtedness secured by any Lien
permitted by any of the foregoing clauses of this Section,
provided that such Indebtedness is not increased and is not
secured by any additional Property;
(vii) Liens incidental to the conduct of its business or the
ownership of its Property which (i) do not secure
Indebtedness and (ii) do not in the
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aggregate materially detract from the value of its Property
or materially impair the use thereof in the operation of
its business;
(viii) Liens incurred in connection with the sale by the Company
or any of its Subsidiaries of accounts receivable, provided
that such Liens do not encumber any Property other than
such accounts receivable sold; and
(ix) Liens not otherwise permitted by the foregoing clauses of
this Section securing Indebtedness in an aggregate
principal amount at any time outstanding not to exceed 10%
of Consolidated Tangible Net Worth.
6.11. Consolidated Indebtedness to Consolidated Total Capital. The
Company shall maintain, as of the end of each fiscal quarter, Consolidated
Indebtedness of no more than 50% of Consolidated Total Capital.
6.12. Consolidated Net Worth. The Company shall maintain, as of the end
of each fiscal quarter, Consolidated Net Worth of not less than $1,528,913,600.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made under Article V
by the Company or any Subsidiary to the Lenders or the Agent under or in
connection with this Agreement or any certificate or other document delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made or deemed made.
7.2. Nonpayment of principal of any Note when due, or nonpayment of
interest upon any Note or of any facility fee or other obligations under any of
the Loan Documents within five days after the same becomes due.
7.3. The breach by the Company of any of the terms or provisions of
Sections 6.2, 6.9, 6.10, 6.11 and 6.12.
7.4. The breach by the Company (other than a breach which constitutes a
Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of this
Agreement which is not remedied within thirty days after written notice from the
Agent or any Lender.
7.5. Failure of the Company or any of its Subsidiaries to pay
Indebtedness in an aggregate amount equal to or greater than $25,000,000 (or the
Equivalent Amount of Indebtedness
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denominated in a currency other than Dollars) when due; or the default by the
Company or any of its Subsidiaries in the performance of any term, provision or
condition contained in any agreement under which any such Indebtedness was
created or is governed, or any other event shall occur or condition exist, the
effect of which is to cause, or to permit the holder or holders of such
Indebtedness to cause, Indebtedness in such aggregate amount to become due prior
to its stated maturity; or Indebtedness in such aggregate amount of the Company
or any of its Subsidiaries shall be declared to be due and payable or required
to be prepaid (other than by a regularly scheduled payment) prior to the stated
maturity thereof.
7.6. Any Borrower or any Material Subsidiary shall (i) have an order for
relief entered with respect to it under any bankruptcy, insolvency or other
similar law as now or hereafter in effect, (ii) make an assignment for the
benefit of creditors, (iii) fail to pay, or admit in writing its inability to
pay, its debts generally as they become due, (iv) apply for, seek, consent to,
or acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (v) institute any proceeding seeking an order for relief under any
bankruptcy, insolvency or other similar law as now or hereafter in effect or
seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (vi)
take any corporate action to authorize or effect any of the foregoing actions
set forth in this Section 7.6 or (vii) fail to contest in good faith any
appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Borrower or any
Material Subsidiary, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for any Borrower or any Material Subsidiary or any
Substantial Portion of the Property of any such Person, or a proceeding
described in Section 7.6(iv) shall be instituted against any Borrower or any
Material Subsidiary and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 30 consecutive
days.
7.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a "Condemnation"),
all or any portion of the Property of any Borrower or any Material Subsidiary
which, when taken together with all other Property of any Borrower and the
Material Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion.
7.9. The Company or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge any judgment or order for the payment of money
in excess of $25,000,000, which is not stayed on appeal or otherwise being
appropriately contested in good faith.
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7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed
in the aggregate $25,000,000, or any Reportable Event shall occur in connection
with any Plan which could reasonably be expected to have a Material Adverse
Effect.
7.11. The Company or any of its Subsidiaries shall be the subject of any
proceeding or proceedings pertaining to the release by the Company or any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or substance
into the environment, or to any violation of any federal, state or local
environmental, health or safety law or regulation, which if adversely determined
could reasonably be expected to result in total liability to the Company or any
of its Subsidiaries, in the aggregate, in excess of a Substantial Portion.
7.12. The obligations of the Company under Article IX hereof shall fail
to remain in full force or effect or any action shall be taken to discontinue or
to assert the invalidity or unenforceability of any of such obligations, or the
Company shall deny that it has any further liability under such Article IX, or
shall give notice to such effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7 occurs
with respect to the Company or any of its Material Subsidiaries, the obligations
of the Lenders to make Loans hereunder shall automatically terminate and the
Obligations of the Company and each Borrowing Subsidiary shall immediately
become due and payable without presentment, demand, protest or notice of any
kind (all of which the Company hereby expressly waives) or any other election or
action on the part of the Agent or any Lender. If any other Default occurs, the
Required Lenders may terminate or suspend the obligations of the Lenders to make
Loans hereunder, or declare the Obligations of the Company and each Borrowing
Subsidiary to be due and payable, or both, in either case upon written notice to
the Company and the applicable Borrower, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or further
notice of any kind, all of which each Borrower hereby expressly waives.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Company may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Company hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of each Lender affected thereby:
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(i) Extend the maturity of any Loan or Note or reduce the
principal amount thereof, or reduce the rate or extend the
time of payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
(iii) Extend the Termination Date or increase the amount of the
Commitment of any Lender hereunder, or permit the Company
to assign its rights under this Agreement.
(iv) Amend or modify Section 8.1 or this Section 8.2.
(v) Amend, modify or waive Article IX or release the Company
from its obligations thereunder.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 13.3.2 without obtaining the consent of any of
the Lenders. The consent of a Borrowing Subsidiary shall not be required for any
amendment to the Agreement or the Notes, including without limitation one
increasing the rate of interest on its Note or decreasing the maturity thereof.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Company or a Borrowing Subsidiary to satisfy the conditions precedent to
such Loan shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Lenders required pursuant to Section 8.2,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Agent and the Lenders until the Obligations have been
paid in full.
ARTICLE IX
GUARANTY
9.1. Guaranty. For valuable consideration, the receipt of which is
hereby acknowledged, and to induce the Lenders to make advances to each
Borrowing Subsidiary, the Company hereby absolutely and unconditionally
guarantees prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of any and all
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existing and future obligations of each Borrowing Subsidiary to the Agent, the
Lenders and any holder of a Note, or any of them, under or with respect to the
Loan Documents, whether for principal, interest, fees, expenses or otherwise
(collectively, the "Guaranteed Obligations").
9.2. Waivers. The Company waives notice of the acceptance of this
guaranty and of the extension or continuation of the Guaranteed Obligations or
any part thereof. The Company further waives presentment, protest, notice of
notices delivered or demand made on any Borrowing Subsidiary or action or
delinquency in respect of the Guaranteed Obligations or any part thereof,
including any right to require the Agent and the Lenders to sue the Borrowing
Subsidiary, any other guarantor or any other Person obligated with respect to
the Guaranteed Obligations or any part thereof, or otherwise to enforce payment
thereof against any collateral securing the Guaranteed Obligations or any part
thereof, and provided further that if at any time any payment of any portion of
the Guaranteed Obligations is rescinded or must otherwise be restored or
returned upon the insolvency, bankruptcy or reorganization of any of the
Borrowing Subsidiaries or otherwise, the Company's obligations hereunder with
respect to such payment shall be reinstated at such time as though such payment
had not been made and whether or not the Agent or the Lenders are in possession
of this guaranty. The Agent and the Lenders shall have no obligation to disclose
or discuss with the Company their assessments of the financial condition of the
Borrowing Subsidiaries.
9.3. Guaranty Absolute. This guaranty is a guaranty of payment and not
of collection, is a primary obligation of the Company and not one of surety, and
the validity and enforceability of this guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy or of any default with respect to the
Guaranteed Obligations or any part thereof or any agreement relating thereto or
with respect to any collateral; (d) any release, surrender, compromise,
settlement, waiver, subordination or modification, with or without
consideration, of any collateral, any other guaranties with respect to the
Guaranteed Obligations or any part thereof, or any other obligation of any
Person with respect to the Guaranteed Obligations or any part thereof; (e) the
enforceability or validity of the Guaranteed Obligations or any part thereof or
the genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral; (f) the application of payments received from
any source to the payment of obligations other than the Guaranteed Obligations,
any part thereof or amounts which are not covered by this guaranty even though
the Agent and the Lenders might lawfully have elected to apply such payments to
any part or all of the Guaranteed Obligations or to amounts which are not
covered by this guaranty; (g) any change in the ownership of any Borrowing
Subsidiary or the insolvency, bankruptcy or any other change in the legal status
of any Borrowing Subsidiary; (h) the change in or the imposition of any law,
decree, regulation or other governmental act which does or might impair, delay
or in any way affect the validity, enforceability or the payment when due of the
Guaranteed Obligations; (i) the failure of the
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Company or any Borrowing Subsidiary to maintain in full force, validity or
effect or to obtain or renew when required all governmental and other approvals,
licenses or consents required in connection with the Guaranteed Obligations or
this guaranty, or to take any other action required in connection with the
performance of all obligations pursuant to the Guaranteed Obligations or this
guaranty; (j) the existence of any claim, setoff or other rights which the
Company may have at any time against any Borrowing Subsidiary, or any other
Person in connection herewith or an unrelated transaction; or (k) any other
circumstances, whether or not similar to any of the foregoing, which could
constitute a defense to a guarantor; all whether or not the Company shall have
had notice or knowledge of any act or omission referred to in the foregoing
clauses (a) through (k) of this paragraph. It is agreed that the Company's
liability hereunder is several and independent of any other guaranties or other
obligations at any time in effect with respect to the Guaranteed Obligations or
any part thereof and that the Company's liability hereunder may be enforced
regardless of the existence, validity, enforcement or non-enforcement of any
such other guaranties or other obligations or any provision of any applicable
law or regulation purporting to prohibit payment by any Borrowing Subsidiary of
the Guaranteed Obligations in the manner agreed upon between the Borrowing
Subsidiary and the Agent and the Lenders.
9.4. Waiver of Subrogation. The Company waives any claim, as that term
is defined in the federal Bankruptcy Code, which the Company might now have or
hereafter acquire against any Borrowing Subsidiary that arises from the
existence or performance of the Company's obligations under this guaranty.
9.5. Acceleration. The Company agrees that, as between the Company on
the one hand, and the Lenders and the Agent, on the other hand, the obligations
of each Borrowing Subsidiary guaranteed under this Article IX may be declared to
be forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in Section 8.1 hereof for purposes of this Article IX,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Borrowing Subsidiary or otherwise)
preventing such declaration as against such Borrowing Subsidiary and that, in
the event of such declaration or automatic acceleration, such obligations
(whether or not due and payable by such Borrowing Subsidiary) shall forthwith
become due and payable by the Company for purposes of this Article IX.
9.6. Termination Date. This guaranty shall continue in effect until the
date the Aggregate Commitment shall have been terminated or otherwise expired in
accordance with its terms and all of the Guaranteed Obligations have been paid
in full.
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ARTICLE X
GENERAL PROVISIONS
10.1. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Company or a Borrowing Subsidiary in violation of any limitation or
prohibition provided by any applicable statute or regulation.
10.2. Taxes. Any taxes (excluding income taxes) or other similar
assessments or charges payable or ruled payable by any governmental authority in
respect of the Loan Documents shall be paid by the Company, together with
interest and penalties, if any.
10.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.4. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrowers, the Agent and the
Lenders relating to the subject matter thereof except as contemplated in Section
2.4.2.
10.5. Several Obligations. The respective obligations of the Lenders
hereunder are several and not joint and no Lender shall be the partner or agent
of any other (except to the extent to which the Agent is authorized to act as
such). The failure of any Lender to perform any of its obligations hereunder
shall not relieve any other Lender from any of its obligations hereunder. No
Lender shall have any liability for the failure of any other Lender to perform
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
10.6. Expenses; Indemnification. The Company shall reimburse (i) the
Agent for any costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and, in connection with the preparation, execution
and delivery of the Loan Documents, time charges of attorneys for the Agent,
which attorneys may be employees of the Agent) paid or incurred by the Agent in
connection with the preparation, review, execution, delivery, amendment,
modification and administration of the Loan Documents provided, however, that
such time charges of attorneys for the Agent in connection with the preparation,
execution and delivery of the Loan Documents shall be limited as heretofore
agreed to in writing by the Agent and the Company, and (ii) the Agent and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent and the Lenders)
paid or incurred by the Agent or any Lender in connection with the collection
and enforcement of the Loan Documents (except to the extent that a court of
competent jurisdiction rules against the Agent and the Lenders
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in a final judgment in any such collection or enforcement action), any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or any insolvency or bankruptcy
proceedings in respect of the Company. The Company further agrees to indemnify
the Agent and each Lender, its directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Agent or any Lender is a party thereto)
(collectively, the "Indemnified Amounts") which any of them may pay or incur
arising out of or relating to the direct or indirect application or proposed
application of the proceeds of any Loan hereunder; provided, however, that the
Company shall not be liable to any Lender for any Indemnified Amounts resulting
from any Lender's gross negligence or willful misconduct. The obligations of the
Company under this Section 10.6 shall survive the termination of this Agreement.
10.7. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
10.8. Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
10.9. Nonliability of Lenders. The relationship between the Borrowers and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities to the
Borrowers. Neither the Agent nor any Lender undertakes any responsibility to the
Borrowers to review or inform the Borrowers of any matter in connection with any
phase of the Borrowers' business or operations.
10.10. CHOICE OF LAW. THE LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10.11. CONSENT TO JURISDICTION. EACH BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENTS AND THE COMPANY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES TO THE EXTENT ALLOWED BY LAW ANY OBJECTION IT MAY
NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
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BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS
AGAINST A BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
10.12. WAIVER OF JURY TRIAL. THE BORROWERS, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
10.13. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Company or any Subsidiary pursuant to
this Agreement in confidence, except for disclosure (i) to other Lenders and
their respective affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender, (iii) to regulatory officials, (iv) as
requested pursuant to or as required by law, regulation, or legal process, (v)
in connection with any legal proceeding to which that Lender is a party, and
(vi) permitted by Section 13.4. The restrictions in this Section 10.13 shall not
apply to any information which is or becomes generally available to the public
other than as a result of disclosure by a Lender or a Lender's representatives.
10.14. Restructuring Date. The Company, each Lender and the Agent agree
that on the Restructuring Date the following transactions shall be deemed to
occur automatically, without further action by any party hereto:
(a) The Original Credit Facility shall be superseded by the New Credit
Facility and the Original Credit Agreement shall be deemed to be amended and
restated in its entirety in the form of this Agreement.
(b) The Agent shall, promptly after receipt of the Notes reflecting the
amendments to the Original Credit Agreement effected hereunder, cancel and
return to the Company (upon receipt from the Lenders) the promissory notes being
replaced by such Notes.
The Company, each Lender and the Agent agree that (i) the restructuring
transactions provided in the foregoing sentence shall not be effective until the
execution of this Agreement by all of the parties hereto and the satisfaction of
the conditions precedent set forth in Section 4.1 hereof; (ii) all terms and
conditions of the Original Credit Agreement which are amended and restated by
this Agreement shall remain effective until such amendment and restatement
becomes effective hereunder, and thereafter shall continue to be effective only
as amended and restated by this Agreement and (iii) the representations,
warranties and covenants set forth herein shall become effective concurrently
with execution of this Agreement by all of the parties hereto.
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10.15. Euro. With effect on and from the Euro Implementation Date, (i)
without prejudice to any method of conversion or rounding prescribed by any
legislative measures of the Council of the European Union, each reference in
this Agreement to a fixed amount or to fixed amounts in a National Currency Unit
to be paid to or by the Agent shall be replaced by a reference to such
comparable and convenient fixed amount or fixed amounts in Euro as the Agent may
from time to time specify; and (ii) the Agent may notify the other parties to
this Agreement of any amendments to this Agreement which the Agent (acting
reasonably and after consultation with the other parties to this Agreement)
determined to be necessary as a result of the commencement of the third stage of
European Economic and Monetary Union and the occurrence of the Euro
Implementation Date. Notwithstanding any other provision of this Agreement, any
amendments so notified shall take effect in accordance with the terms of the
relevant notification. So far as possible, the amendments shall be such as to
put the parties in the same position as if the Euro Implementation Date had not
occurred. However, if and to the extent the Agent determines it is not possible
to put all parties into that position, the Agent may give priority to putting
the Agent and the Lenders into that position.
ARTICLE XI
THE AGENT
11.1. Appointment. The First National Bank of Chicago is hereby appointed
Agent hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the agent of such Lender. The Agent
agrees to act as such upon the express conditions contained in this Article XI.
The Agent shall not have a fiduciary relationship in respect of any Lender by
reason of this Agreement.
11.2. Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
11.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to any Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them under or in
connection with this Agreement except for its or their own gross negligence or
willful misconduct.
11.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (i) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document; (iii) the satisfaction of any
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condition specified in Article IV, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
any Loan Document or any other instrument or writing furnished in connection
therewith, except for the authority of the Agent's signatory to this Agreement.
11.5. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders or all the Lenders, as applicable, and such instructions and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders and on all holders of Notes. The Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action, provided that, such
indemnity need not include liability, costs and expenses arising solely from the
gross negligence or willful misconduct of the Agent.
11.6. Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
11.7. Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
11.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Company or any Borrowing
Subsidiary for which the Agent is entitled to reimbursement by the Company or
any Borrowing Subsidiary under the Loan Documents, (ii) for any other expenses
not reimbursed by the Company incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever and not reimbursed by the
Company which may be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Agent.
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11.9. Rights as a Lender. With respect to its Commitment, Loans made by
it and the Notes issued to it, the Agent shall have the same rights and powers
hereunder and under any other Loan Document as any Lender and may exercise the
same as though it were not the Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Agent in its individual
capacity. The Agent may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Company or any of its Subsidiaries.
11.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Company and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
11.11. Successor Agent. The Agent may resign at any time by giving at
least 30 days' prior written notice thereof to the Lenders and the Company and
such resignation shall be effective at the end of such 30-day period or upon the
earlier appointment of a successor agent, and the Agent may be removed at any
time with or without cause by written notice received by the Agent from the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Company and the Lenders, a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty days
after the retiring Agent's removal or giving notice of resignation, then the
retiring Agent may appoint, on behalf of the Company and the Lenders, a
successor Agent. Such successor Agent shall be a commercial bank having capital
and retained earnings of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent. The retiring Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents upon the
effectiveness of its removal or resignation hereunder. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
Article XI shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Agent hereunder
and under the other Loan Documents.
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ARTICLE XII
SETOFF; RATABLE PAYMENTS
12.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Company or a Borrowing Subsidiary
becomes insolvent, however evidenced, or any Default occurs, any indebtedness
from any Lender to any Borrower (including all account balances, whether
provisional or final and whether or not collected or available) may be offset
and applied toward the payment of the Obligations owing to such Lender, whether
or not the Obligations, or any part thereof, shall then be due.
12.2. Ratable Payments. If, after the occurrence of a Default, any
Lender, whether by setoff or otherwise, has payment made to it upon its share of
any Advance (other than payments received pursuant to Article III) in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a portion of the Loans comprising that Advance held by
the other Lenders so that after such purchase each Lender will hold its ratable
proportion of Loans comprising that Advance. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS
13.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (i) no
Borrower shall have the right to assign its rights or obligations under the Loan
Documents and (ii) any assignment by any Lender must be made in compliance with
Section 13.3. Notwithstanding clause (ii) of this Section, any Lender may at any
time, without the consent of any Borrower or the Agent, assign all or any
portion of its rights under this Agreement and its Notes to a Federal Reserve
Bank; provided, however, that no such assignment shall release the transferor
Lender from its obligations hereunder. The Agent may treat the payee of any Note
as the owner thereof for all purposes hereof unless and until such payee
complies with Section 13.3 in the case of an assignment thereof or, in the case
of any other transfer, a written notice of the transfer is filed with the Agent.
Any assignee or transferee of a Note agrees by acceptance thereof to be bound by
all the terms and provisions of the Loan
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Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
13.2. Participations.
13.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more Eligible Banks ("Participants") participating interests in any
Loan owing to such Lender, any Note held by such Lender, the Commitment of such
Lender, or any other interest of such Lender under the Loan Documents, provided
that the aggregate of such participating interests equals or exceeds $10,000,000
(or the Equivalent Amount thereof if denominated in an Agreed Currency other
than Dollars). In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrowers under this Agreement shall be determined as if
such Lender had not sold such participating interests, and the Borrowers and the
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents.
13.2.2. Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect to any such Loan or
Commitment, postpones any date fixed for any regularly-scheduled payment of
principal of, or interest or fees on, any such Loan or Commitment, releases any
guarantor of any such Loan, if any, or releases any substantial portion of
collateral, if any, securing any such Loan.
13.2.3. Benefit of Setoff. The Borrowers agree that each Participant
shall be deemed to have the right of setoff provided in Section 12.1 in respect
of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 12.1 with respect to the amount
of participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 12.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 12.2 as if each Participant were a Lender.
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13.3. Assignments.
13.3.1. Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more Eligible Banks ("Purchasers") all or a portion of its rights and
obligations under the Loan Documents, which assignment shall be in amounts equal
to or greater than $10,000,000 (or the Equivalent Amount thereof if denominated
in an Agreed Currency other than Dollars). Such assignment shall be
substantially in the form of Exhibit "F" hereto.
13.3.2. Effect; Effective Date. Upon (i) delivery to the Agent of a
notice of assignment, substantially in the form attached as Exhibit "I" to
Exhibit "F" hereto (a "Notice of Assignment"), together with any consent
required by Section 13.3.1, and (ii) payment of a $3,000 fee to the Agent by the
assigning Lender for processing such assignment, such assignment shall become
effective on the effective date specified in such Notice of Assignment. On and
after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by any Borrower, the Lenders or
the Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
13.3.2, the transferor Lender, the Agent and the Borrowers shall make
appropriate arrangements so that replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their respective
Commitments, as adjusted pursuant to such assignment.
13.4. Dissemination of Information. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Company and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
10.13 of this Agreement.
13.5. Tax Treatment. If any interest in any Loan Document is transferred
to any Purchaser which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Purchaser, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 2.5.15.
Page 60
<PAGE> 68
ARTICLE XIV
NOTICES
14.1. Giving Notice. Except as otherwise permitted by Section 2.5.8, all
notices and other communications provided to any party hereto under this
Agreement or any other Loan Document shall be in writing or by telex or by
facsimile and addressed or delivered to such party at its address set forth
below its signature hereto or at such other address as may be designated by such
party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes).
14.2. Change of Address. The Company, each Borrowing Subsidiary, the
Agent and each Lender may change the address for service of notice upon it by a
notice in writing to the other parties hereto.
ARTICLE XV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the Agent
and the Lenders and each party has notified the Agent by telex or telephone,
that it has taken such action.
Page 61
<PAGE> 69
IN WITNESS WHEREOF, the Company, the Lenders and the Agent have
executed this Agreement as of the date first above written.
ILLINOIS TOOL WORKS INC.
By: /s/ [ILLEGIBLE]
-------------------------------------
Title: Senior vice Pfresident & CFO
By: /s/ MICHAEL J. ROBINSON
-------------------------------------
Title: Vice President & Treasurer
----------------------------------
Address: 3600 West Lake Avenue
Glenview, IL 60025-5811
Attention: Michael J. Robinson
Title: Vice President and Treasurer
Telephone: (847) 657-4245
Facsimile: (847) 657-4415
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-1
<PAGE> 70
Commitment
$50,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Agent
By: /s/ DEBORAH E. STEVENS
--------------------------------------
Title: Authorized Agent
------------------------------------
Address: One First National Plaza
Suite 0088
Chicago, IL 60670
Attention: Deborah E. Stevens
Title: Vice President
Telephone: (312) 732-2532
Facsimile: (312) 732-5161
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-2
<PAGE> 71
$38,000,000 BANK OF MONTREAL
By: /s/ SHARRON P. WALSH
-------------------------------------------
Title: Director
----------------------------------------
Address: 115 South LaSalle Street, 12W
Chicago, Illinois 60603
Attention: Sharron P. Walsh
Title: Director
Telephone: (312) 750-3743
Facsimile: (312) 750-3783
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-3
<PAGE> 72
$38,000,000 COMMERZBANK AKTIENGESELLSCHAFT, GRAND
CAYMAN BRANCH
By: /s/ ALBERT B. MORROW
----------------------------------------
Title: Assistant Treasurer
-------------------------------------
By: /s/ MARK MONSON
---------------------------------------
Title: Vice President
------------------------------------
Address: 311 South Wacker Drive
Chicago, IL 60606
Attention: Mark Monson
Title: Vice President
Telephone: (312) 408-6910
Facsimile: (312) 435-1486
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-4
<PAGE> 73
$38,000,000 REVOLVING COMMITMENT VEHICLE
CORPORATION
By: Morgan Guaranty Trust Company of New York,
as Attorney-in-fact for Revolving Commitment
Vehicle Corporation
By: /s/ ANDREW D. BROWN
-----------------------------------------------
Title: Vice President
-------------------------------------------
Address: 60 Wall Street
Third Floor
New York, New York 10260-0060
Attention: Penelope Cox
Title: Vice President
Telephone: (212) 648-0405
Facsimile: (212) 648-5939
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-5
<PAGE> 74
$38,000,000 NATIONAL AUSTRALIA BANK LIMITED
ACN # 004 044 937
By: /s/ [ILLEGIBLE]
-------------------------------------------
Title: Vice President
----------------------------------------
Address: 200 Park Avenue
34th Floor
New York, NY 10166
Attention: Jeff White
Title: Vice President
Telephone: (212) 916-9509
Facsimile: (212) 983-1969
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-6
<PAGE> 75
$38,000,000 THE NORTHERN TRUST COMPANY
By: /s/ JOSEPH A. WEMHOFF
--------------------------------------------
Title: Vice President
----------------------------------------
Address: 50 South LaSalle Street, B-11
Chicago, IL 60675
Attention: Joseph A. Wemhoff
Title: Vice President
Telephone: (312) 444-3757
Facsimile: (312) 444-5055
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-7
<PAGE> 76
$19,000,000 BANCA COMMERCIALE ITALIANA
By: /s/ [ILLEGIBLE]
-------------------------------------------
Title: Senior Vice President & Branch Manager
By: /s/ [ILLEGIBLE]
-------------------------------------------
Title: Vice President
----------------------------------------
Address: 150 North Michigan Avenue
Suite 1500
Chicago, IL 60601
Attention: Miriam Bommarito
Title: Corporate Banking Officer
Telephone: (312) 346-1112
Facsimile: (312) 346-5758
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-8
<PAGE> 77
$19,000,000 THE DAI-ICHI KANGYO BANK, LTD.
CHICAGO BRANCH
By: /s/ [ILLEGIBLE]
-------------------------------------------
Title: Vice President
----------------------------------------
Address: 10 South Wacker Drive
26th Floor
Chicago, IL 60606
Attention: John Sneed
Title: Vice President
Telephone: (312) 715-6362
Facsimile: (312) 876-2011
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-9
<PAGE> 78
$19,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH
By: /s/ WALTER R. WOLFF
-------------------------------------------
Title: Joint General Manager
----------------------------------------
Address: 227 West Monroe Street
Suite 2600
Chicago, IL 60606
Attention: Walter R. Wolff
Title: Joint General Manager
Telephone: (312) 855-1111
Facsimile: (312) 855-8200
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-10
<PAGE> 79
$19,000,000 SOCIETE GENERALE, CHICAGO BRANCH
By: /s/ JOSE A. MORENO
-------------------------------------------
Title: Director
----------------------------------------
Address: 181 West Madison Street
Suite 3400
Chicago, IL 60602
Attention: Jose A. Moreno
Title: Vice President & Team Leader
Telephone: (312) 578-5050
Facsimile: (312) 578-5099
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-11
<PAGE> 80
$19,000,000 WACHOVIA BANK, N.A.
By: /s/ TODD J. EIGLE
------------------------------------
Title: Vice President
---------------------------------
Address: 70 West Madison Street
Suite 2440
Chicago, IL 60602
Attention: Neil Mesch
Title: Assistant Vice President
Telephone: (312) 853-0404
Facsimile: (312) 853-0693
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-12
<PAGE> 81
$15,000,000 MARINE MIDLAND BANK
By: /s/ M. C. CUTLIP
-------------------------------------------
Title: Officer #9135
----------------------------------------
Address: 190 South LaSalle Street
Suite 1100
Chicago, IL 60603-3410
Attention: Steven Trepiccione
Title: Vice President-Officer #9435
Telephone: (312) 853-6420
Facsimile: (312) 853-3855
- -------------
$350,000,000
Signature Page to Illinois Tool Works Inc.
Second Amended and Restated Credit Agreement
S-13
<PAGE> 82
SCHEDULE I
Euro-Currency Payment Offices of the Agent*
Currency Euro-Currency Payment Office
- -------- ----------------------------
Dollars The First National Bank of Chicago
Cayman
Deutsche Marks To: Swiss Bank Corp.
Frankfurt, Germany
For: The First National Bank of Chicago
Chicago Office
Dutch Guilders To: ING Bank
Amsterdam, Netherlands
For: The First National Bank of Chicago
Cayman
French Francs To: Credit Commercial De France
Paris, France
For: The First National Bank of Chicago
Cayman
Japanese Yen To: The First National Bank of Chicago
Tokyo
For: The First National Bank of Chicago
Cayman
Pounds Sterling To: Midland Bank, PLC
London, England
For: The First National Bank of Chicago
Cayman
Euro To be determined
*Accounts to be provided before payments made
I
<PAGE> 83
SCHEDULE II
ILLINOIS TOOL WORKS INC.
Material Subsidiaries
<TABLE>
<CAPTION>
Jurisdiction of Percentage
Name Incorporation/Organization Ownership
---- -------------------------- ----------
<S> <C> <C>
Azon Pty Australia 100
Buell Industries, Inc. Delaware 100
Champs Investments France 100
Cumberland Leasing Co. Illinois 100
Elleyse Financing France 100
Hobart Brothers Company Ohio 100
ITW (Deutschland) GmbH Germany 100
ITW Ateco Germany 100
ITW Canada L.P. Canada 100
ITW Fastex Italia Italy 100
ITW Finance II LLC Delaware 100
ITW Finishing LLC Delaware 100
ITW Holding France France 100
ITW Holdings GmbH Germany 100
ITW Holdings U.K United Kingdom 100
ITW Holdings Pty Australia 100
ITW Industrie GmbH Germany 100
ITW International Holdings Inc. Delaware 100
ITW International Finance SAS France 100
ITW Investments Inc. Delaware 100
ITW Leasing & Investments Inc. Delaware 100
ITW Limited United Kingdom 100
ITW Mortgage Investments I, Inc. Delaware 100
ITW Mortgage Investments II, Inc. Delaware 100
ITW Mortgage Investments III, Inc. Delaware 100
ITW Mortgage Investments IV, Inc. Delaware 100
ITW Real Estate Investments Inc. Delaware 100
ITW Real Estate L.L.C Delaware 100
ITW Residuals Inc. Delaware 100
ITW Signode Australasia Pty Australia 100
ITW Tech Co. Delaware 100
Loveshaw Corp. Delaware 100
LSPS Inc. Delaware 100
Miller Electric Mfg. Co. Wisconsin 100
Mima Films Belgium Belgium 74
Orgapack GmbH Switzerland 100
Signode Systems GmbH Germany 100
Spit France France 100
W. A. Deutsher Pty. Ltd. Australia 100
</TABLE>
II
<PAGE> 84
EXHIBIT "A-1"
COMMITTED NOTE
September 30, 1998
___________________
____________________________________ , a __________________________
corporation, (the "Company") promises to pay to the order of __________________
(the "Lender") the lesser of the principal sum of _________________ Dollars or
the aggregate unpaid principal amount of all Committed Loans made by the Lender
to the Company pursuant to Section 2.2 of the Second Amended and Restated Credit
Agreement dated as of September 30, 1998, among the Company, The First National
Bank of Chicago, individually and as Agent, and the Lenders named therein,
including the Lender, (as the same may be amended or modified, hereinafter
referred to as the "Agreement"), in the currency in which each such Committed
Loan is denominated in immediately available funds at the main office of The
First National Bank of Chicago in Chicago, Illinois, as Agent or as otherwise
directed by the Agent pursuant to the terms of the Agreement, together with
interest, in like money and funds, on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Company shall pay each
Committed Loan in full on the last day of such Committed Loan's applicable
Interest Period.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Committed Loan and the date and amount of each
principal payment hereunder provided, however, that any failure to so record
shall not affect the Company's obligations under any Loan Document.
This Committed Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Agreement, to which reference is hereby made
for a statement of the terms and conditions under which this Committed Note may
be prepaid or its maturity date accelerated. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
------------------------------
By:
---------------------------
Title:
------------------------
By:
---------------------------
Title:
------------------------
E-1
<PAGE> 85
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
COMMITTED NOTE OF _______________________________
DATED SEPTEMBER 30, 1998
Principal Maturity Principal
Amount and of Interest Amount Unpaid
Date Currency of Loan Period Paid Balance
- ---- ---------------- ----------- --------- -------
E-2
<PAGE> 86
EXHIBIT "A-2"
COMPETITIVE BID NOTE
_______________ [________ ___ _____]
________________________________, a ________ corporation (the
"Company"), promises to pay to the order of _________________ (the "Lender") the
aggregate unpaid principal amount of all Competitive Bid Loans made by the
Lender to the Company pursuant to Section 2.3 of the Second Amended and Restated
Credit Agreement dated as of September 30, 1998, among the Company, The First
National Bank of Chicago, individually and as Agent, and the Lenders named
therein, including the Lender, (as the same may be amended or modified,
hereinafter referred to as the "Agreement"), in the currency in which each such
Competitive Bid Loan is denominated in immediately available funds at the main
office of The First National Bank of Chicago, as Agent, in Chicago, Illinois or
as otherwise directed by the Agent pursuant to the terms of the Agreement,
together with interest, in like money and funds, on the unpaid principal amount
hereof at the rates and on the dates determined in accordance with the
Agreement. The Company shall pay each Competitive Bid Loan in full on the last
day of such Competitive Bid Loan's applicable Interest Period.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or otherwise record in accordance with its usual practice, the
date and amount of each Competitive Bid Loan and the date and amount of each
principal payment hereunder, provided, however, that any failure to so record
shall not affect the Company's obligations under any Loan Document.
This Competitive Bid Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Agreement, to which reference is hereby made
for a statement of the terms and conditions under which this Competitive Bid
Note may be prepaid or its maturity date accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed to
them in the Agreement.
------------------------------
By:
---------------------------
Title:
------------------------
By:
---------------------------
Title:
------------------------
E-3
<PAGE> 87
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
COMPETITIVE BID NOTE OF
__________________________
DATED SEPTEMBER 30, 1998
Principal Maturity Principal
Amount and of Interest Amount Unpaid
Date Currency of Loan Period Paid Balance
- ---- ---------------- ----------- --------- -------
E-4
<PAGE> 88
EXHIBIT "B-1"
FORM OF COMPANY OPINION
September 30, 1998
The Agent and the Lenders who are parties to the
Agreement described below.
Gentlemen/Ladies:
I am counsel for Illinois Tool Works Inc. (the "Company"), and have
represented the Company in connection with its execution and delivery of a
Second Amended and Restated Credit Agreement among the Company, The First
National Bank of Chicago, individually and as Agent, and the Lenders named
therein, providing for Advances in an aggregate principal amount not exceeding,
as of the date hereof, $350,000,000 at any one time outstanding (with provisions
therein allowing for an increase in the maximum amount of Advances thereunder to
$800,000,000, subject to all of the terms and conditions set forth therein) and
dated as of September 30, 1998 (the "Agreement"). All capitalized terms used in
this opinion and not otherwise defined shall have the meanings attributed to
them in the Agreement.
I have examined the Company's and each domestic Material Subsidiary's
articles of incorporation, by-laws, resolutions, the Loan Documents and such
other matters of fact and law which I deem necessary in order to render this
opinion. Based upon the foregoing, it is my opinion that:
l. The Company and each domestic Material Subsidiary are corporations
duly incorporated, validly existing and in good standing under the laws of their
states of incorporation and have all requisite authority to conduct their
business in each jurisdiction in which their business is conducted.
2. The execution and delivery of the Loan Documents by the Company and
the performance by the Company of the Obligations have been duly authorized by
all necessary corporate action and proceedings on the part of the Company and
will not:
(a) require any consent of the Company's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Company or the Company's
articles of incorporation or by-laws or, to my knowledge, any indenture,
instrument or agreement binding upon the Company; or
E-5
<PAGE> 89
(c) result in, or require, the creation or imposition of any Lien
pursuant to the provisions of any indenture, instrument or agreement
known to me and binding upon the Company which could reasonably be
expected to have a Material Adverse Effect.
3. The Loan Documents have been duly executed and delivered by the
Company and constitute legal, valid and binding obligations of the Company
enforceable in accordance with their terms except to the extent the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting the enforcement of creditors' rights
generally and subject also to the availability of equitable remedies, regardless
of whether enforcement is sought at equity or at law.
4. There is no litigation or proceeding against the Company which, to my
knowledge, if adversely determined, could reasonably be expected to have a
Material Adverse Effect.
5. No approval, authorization, consent, adjudication or order of any
governmental authority, which has not been obtained by the Company or any of its
Material Subsidiaries, is required to be obtained by the Company or any of its
Material Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under the Agreement or in connection with the payment
by the Company of the Obligations.
This opinion may be relied upon by the Agent, the Lenders and their
participants, assignees and other transferees.
Very truly yours,
____________________________________
E-6
<PAGE> 90
EXHIBIT "B-2"
FORM OF SUBSIDIARY OPINION
[-------------]
The Agent and the Lenders who are parties to the Agreement described below.
Gentlemen/Ladies:
I refer to the Second Amended and Restated Credit Agreement among
Illinois Tool Works Inc. (the "Company"), The First National Bank of Chicago,
individually and as Agent, and the Lenders named therein, providing for Advances
in an aggregate principal amount not exceeding, as of the date hereof,
$350,000,000 at any one time outstanding (with provisions therein allowing for
an increase in the maximum amount of Advances thereunder to $800,000,000,
subject to all of the terms and conditions set forth therein) and dated as of
September 30, 1998 (as the same has been or may be amended, modified or
supplemented, the "Agreement"). I have acted as counsel for _____, a _____
corporation and subsidiary of the Company (the "Borrowing Subsidiary"), in
connection with its execution and delivery of the Assumption Letter dated _____,
199__ (the "Assumption Letter"). Capitalized terms not defined herein are used
as defined in the Agreement.
Pursuant to Section 4.2(iv) of the Agreement, I advise you that in my
opinion:
l. The Borrowing Subsidiary is a corporation duly incorporated, validly
existing and in good standing under the laws of _____.
2. The Borrowing Subsidiary has full corporate power and authority to own
its properties and to carry on its business as now conducted.
3. The execution, delivery and performance of the Assumption Letter are
within the corporate power and authority of the Borrowing Subsidiary, have been
duly authorized by proper corporate proceedings on behalf of the Borrowing
Subsidiary, do not and will not contravene any provision of applicable law or of
the [Articles/Certificate] of Incorporation or the By-laws of the Borrowing
Subsidiary or any agreement or instrument binding on the Borrowing Subsidiary of
which we have knowledge and do not and will not result in the creation of any
Lien upon any of its property or assets pursuant to any such agreement or
instrument of which we have knowledge, which contravention or result could
reasonably be expected to have a Material Adverse Effect.
E-7
<PAGE> 91
4. The Assumption Letter delivered to the Agent on the date hereof by the
Borrowing Subsidiary has been duly executed and delivered by the Borrowing
Subsidiary and the Assumption Letter and the Agreement constitute the legal,
valid and binding obligations of the Borrowing Subsidiary enforceable against
the Borrowing Subsidiary in accordance with its respective terms except to the
extent the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights generally and subject also to the availability
of equitable remedies, regardless of whether enforcement is sought at equity or
at law.
5. No approval, consent or authorization of, or filing or registration
with, any governmental department, agency or instrumentality is necessary for
the execution or delivery by the Borrowing Subsidiary of the Assumption Letter
or the performance by the Borrowing Subsidiary of any of the terms or conditions
thereof.
In rendering the opinions expressed above, I have examined originals, or
copies of originals certified to my satisfaction, of such agreements, documents,
certificates and other statements of government officials and corporate officers
and such other papers and evidence as I have deemed relevant and necessary as a
basis for this opinion. I have assumed the authenticity of all documents
submitted to me as originals and the conformity with the original documents of
any copies thereof submitted to me for my examination.
Very truly yours,
E-8
<PAGE> 92
EXHIBIT "C"
COMPETITIVE BID QUOTE REQUEST
(Section 2.3.2)
___________ , 199____
To: The First National Bank of Chicago,
as agent (the "Agent")
From: Illinois Tool Works Inc. (the "Company")
Re: Second Amended and Restated Credit Agreement (the "Agreement")
dated as of September 30, 1998, among the Company, The First
National Bank of Chicago, individually and as Agent, and the
Lenders listed on the signature pages thereof
We hereby give notice pursuant to Section 2.3.2 of the Agreement that we
request, on **[our own behalf/behalf of [Name of Borrowing Subsidiary]]**,
Competitive Bid Quotes for the following proposed Competitive Bid Advance(s):
Borrowing Date:______________, 199___
Currency Principal Amount(1) Interest Period(2)
- -------- ----------------- ----------------
Such Competitive Bid Quotes should offer [a Competitive Bid Margin] [an
Absolute Rate].
Upon acceptance by the undersigned of any or all of the Competitive Bid
Advances offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in the Agreement to the extent specified in Article IV thereof.
Capitalized terms used herein have the meanings assigned to them in the
Agreement.
ILLINOIS TOOL WORKS INC.
By:
-----------------------------
Title:
----------------------------
(1) Amount must be at least $5,000,000 and an integral multiple of
$1,000,000 (or the Approximate Equivalent Amount thereof).
(2) One, two, three or six months (Eurocurrency Auction) or at least 30 and
up to 270 days (Absolute Rate Auction), subject to the provisions of the
definitions of Eurocurrency Interest Period and Absolute Rate Interest
Period.
E-9
<PAGE> 93
EXHIBIT "D"
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.3.3)
______________, 199___
To: [Name of Lender]
Re: Invitation for Competitive Bid Quotes to
Illinois Tool Works Inc. (the "Company")
Pursuant to Section 2.3.3 of the Second Amended and Restated Credit
Agreement dated as of September 30, 1998 (the "Agreement") among the Company,
the Lenders parties thereto and the undersigned, as Agent, we are pleased on
behalf of the Company to invite you to submit Competitive Bid Quotes to the
Company for the following proposed Competitive Bid Advance(s):
Borrowing Date: __________________, 19____
Borrower Currency Principal Amount Interest Period
- -------- -------- ---------------- ---------------
Such Competitive Bid Quotes should offer [a Competitive Bid Margin] [an
Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.3.4 of the
Agreement and the foregoing. Capitalized terms used herein have the meanings
assigned to them in the Agreement.
Please respond to this invitation by no later than [3:00 p.m.] [1:00
p.m.] [9:00 a.m.] [(London time)] [(Chicago time)] on ______, 199__.
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By:
-----------------------------------
Authorized Officer
E-10
<PAGE> 94
EXHIBIT "E"
COMPETITIVE BID QUOTE
(Section 2.3.4)
____________________ , 199__
To: The First National Bank of Chicago, as Agent
Attn: __________________
Re: Competitive Bid Quote to Illinois Tool Works Inc. (the "Company")
In response to your invitation on behalf of the Company dated _____, 199__, we
hereby make the following Competitive Bid Quote pursuant to Section 2.3.4 of the
Second Amended and Restated Credit Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender:____________________________________________
2. Person to contact at Quoting Lender:_______________________
3. Borrowing Date:_____________, 199__(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
Principal Interest [Competitive [Absolute Minimum
Currency Amount(2) Period(3) Bid Margin(4)] Rate(5)] Amount(6)
- -------- --------- --------- -------------- -------- ---------
- ------------------------------
(1) As specified in the related Invitation For Competitive Bid Quotes.
(2) Principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000
and an integral multiple of $1,000,000 (or the Approximate Equivalent
Amount thereof).
(3) One, two, three or six months or at least 30 and up to 270 days, as
specified in the related Invitation For Competitive Bid Quotes.
(4) Competitive Bid Margin over or under the Eurocurrency Base Rate
determined for the applicable Interest Period. Specify percentage
(rounded to the nearest 1/100 of 1%) and specify whether "PLUS" or
"MINUS".
(5) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(6) Specify minimum or maximum amount, if any, which the Company may accept
and/or the limit, if any, as to the aggregate principal amount of the
Competitive Bid Loans of the quoting Lender which the Company may accept
(see Section 2.3.4(ii)(d)).
E-11
<PAGE> 95
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Second Amended and
Restated Credit Agreement dated as of September 30, 1998, among the Company, the
Lenders listed on the signature pages thereof and yourselves, as Agent (the
"Credit Agreement"), irrevocably obligates us to make the Competitive Bid
Loan(s) for which any offer(s) are accepted, in whole or in part. Capitalized
terms used herein and not otherwise defined herein shall have their meanings as
defined in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated: ____________, 19 ______ By:
------------------------------------
Authorized Officer
E-12
<PAGE> 96
EXHIBIT "F"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
___________________ (the "Assignor") and ________________________ (the
"Assignee") is dated as of _________________ , 19_____. The parties hereto
agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Second Amended and
Restated Credit Agreement (which, as it may be amended, modified, renewed or
extended from time to time is herein called the "Credit Agreement") described in
Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement relating to the
facilities listed in Item 3 of Schedule 1 and the other Loan Documents. The
aggregate Commitment (or Loans, if the applicable Commitment has been
terminated) purchased by the Assignee hereunder is set forth in Item 4 of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after a
Notice of Assignment substantially in the form of Exhibit "I" attached hereto
has been delivered to the Agent. Such Notice of Assignment must include any
consents required to be delivered to the Agent by Section 13.3.1 of the Credit
Agreement. In no event will the Effective Date occur if the payments required to
be made by the Assignee to the Assignor on the Effective Date under Sections 4
and 5 hereof are not made on the proposed Effective Date. The Assignor will
notify the Assignee of the proposed Effective Date no later than the Business
Day prior to the proposed Effective Date. As of the Effective Date, (i) the
Assignee shall have the rights and obligations of a Lender under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder and (ii) the Assignor shall relinquish its rights and be released from
its corresponding obligations under the Loan Documents with respect to the
rights and obligations assigned to the Assignee hereunder.
4. PAYMENT OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment of Loans
hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion of all Floating Rate Loans
assigned to the Assignee hereunder and (ii) with respect
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<PAGE> 97
to each Fixed Rate Loan made by the Assignor and assigned to the Assignee
hereunder which is outstanding on the Effective Date, (a) on the last day of the
Interest Period therefor or (b) on such earlier date agreed to by the Assignor
and the Assignee or (c) on the date on which any such Fixed Rate Loan either
becomes due (by acceleration or otherwise) or is prepaid (the date as described
in the foregoing clauses (a), (b) or (c) being hereinafter referred to as the
"Payment Date"), the Assignee shall pay the Assignor an amount equal to the
principal amount of the portion of such Fixed Rate Loan assigned to the Assignee
which is outstanding on the Payment Date. If the Assignor and the Assignee agree
that the Payment Date for such Fixed Rate Loan shall be the Effective Date, they
shall agree to the interest rate applicable to the portion of such Loan assigned
hereunder for the period from the Effective Date to the end of the existing
Interest Period applicable to such Fixed Rate Loan (the "Agreed Interest Rate")
and any interest received by the Assignee in excess of the Agreed Interest Rate
shall be remitted to the Assignor. In the event interest for the period from the
Effective Date to but not including the Payment Date is not paid by the Company
with respect to any Fixed Rate Loan sold by the Assignor to the Assignee
hereunder, the Assignee shall pay to the Assignor interest for such period on
the portion of such Fixed Rate Loan sold by the Assignor to the Assignee
hereunder at the applicable rate provided by the Credit Agreement. In the event
a prepayment of any Fixed Rate Loan which is existing on the Payment Date and
assigned by the Assignor to the Assignee hereunder occurs after the Payment Date
but before the end of the Interest Period applicable to such Fixed Rate Loan,
the Assignee shall remit to the Assignor the excess of the prepayment penalty
paid with respect to the portion of such Fixed Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (i) any principal payments received from the
Agent with respect to Fixed Rate Loans prior to the Payment Date and (ii) any
amounts of interest on Loans and fees received from the Agent which relate to
the portion of the Loans assigned to the Assignee hereunder for periods prior to
the Effective Date, in the case of Floating Rate Loans, or the Payment Date, in
the case of Fixed Rate Loans, and not previously paid by the Assignee to the
Assignor.]* In the event that either party hereto receives any payment to which
the other party hereto is entitled under this Assignment Agreement, then the
party receiving such amount shall promptly remit it to the other party hereto.
*Each Assignor may insert its standard payment provisions in lieu of the payment
terms included in this Exhibit.
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<PAGE> 98
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor a
fee on each day on which a payment of interest or [commitment] fees is made
under the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or commitment fees for the period
prior to the Effective Date or, in the case of Fixed Rate Loans, the Payment
Date, which the Assignee is obligated to deliver to the Assignor pursuant to
Section 4 hereof). The amount of such fee shall be the difference between (i)
the interest or fee, as applicable, paid with respect to the amounts assigned to
the Assignee hereunder and (ii) the interest or fee, as applicable, which would
have been paid with respect to the amounts assigned to the Assignee hereunder if
each interest rate was of 1% less than the interest rate paid by the Company
or if the commitment fee was of 1% less than the commitment fee paid by the
Company, as applicable. In addition, the Assignee agrees to pay % of the
recordation fee required to be paid to the Agent in connection with this
Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim. It is understood and agreed
that the assignment and assumption hereunder are made without recourse to the
Assignor and that the Assignor makes no other representation or warranty of any
kind to the Assignee. Neither the Assignor nor any of its officers, directors,
employees, agents or attorneys shall be responsible for (i) the due execution,
legality, validity, enforceability, genuineness, sufficiency or collectability
of any Loan Document, including without limitation, documents granting the
Assignor and the other Lenders a security interest in assets of the Company, any
Subsidiary or any guarantor, (ii) any representation, warranty or statement made
in or in connection with any of the Loan Documents, (iii) the financial
condition or creditworthiness of the Company, any Subsidiary or any guarantor,
(iv) the performance of or compliance with any of the terms or provisions of any
of the Loan Documents, (v) inspecting any of the Property, books or records of
the Company, any Subsidiary, (vi) the validity, enforceability, perfection,
priority, condition, value or sufficiency of any collateral securing or
purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements requested by the Assignee and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement, (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vi) confirms that it is an Eligible
E-15
<PAGE> 99
Bank, [and (vii) attaches the forms prescribed by the Internal Revenue Service
of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any United
States federal income taxes].**
**to be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 13.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any Eligible Bank,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under [Sections 4, 5 and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
Commitment occurs between the date of this Assignment Agreement and the
Effective Date, the percentage interest specified in Item 3 of Schedule 1 shall
remain the same, but the dollar amount purchased shall be recalculated based on
the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
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<PAGE> 100
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
--------------------------------
--------------------------------
--------------------------------
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
--------------------------------
--------------------------------
--------------------------------
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<PAGE> 101
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ____________, 19_____
3. Amounts (As of Date of Item 2 above):
Facility 1*
a. Total of
Commitments (Loans)**
under Credit
Agreement $_____
b. Assignee's
Percentage
of each Facility
purchased under
the Assignment
Agreement*** _____%
c. Amount of
Assigned Share
in each Facility
purchased under
the Assignment
Agreement $_____
4. Assignee's Aggregate
(Loan Amount)** Commitment
Amount Purchased Hereunder: $_____
5. Proposed Effective Date:
Accepted and Agreed: ----------------------
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
-------------------- -------------------
Title: Title:
----------------- ----------------
* Insert specific facility names per Credit Agreement
** If a Commitment has been terminated, insert outstanding Loans in place
of Commitment
*** Percentage taken to 10 decimal places
E-18
<PAGE> 102
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
E-19
<PAGE> 103
EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
_______________ , 19___
To: [NAME OF BORROWER]*
--------------------------------
--------------------------------
[NAME OF AGENT]
--------------------------------
--------------------------------
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Second Amended and Restated Credit Agreement
(the "Credit Agreement") described in Item 1 of Schedule 1 attached hereto
("Schedule 1"). Capitalized terms used herein and not otherwise defined herein
or in such consent shall have the meanings attributed to them in the Credit
Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to the Agent pursuant to Section 13.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of _____, 19__ (the "Assignment"), pursuant to which, among
other things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstandings,
rights and obligations under the Credit Agreement relating to the facilities
listed in Item 3 of Schedule 1, including, without limitation, such interest in
the Assignor's Commitment (if applicable) and the Loans owing to the Assignor
relating to such facilities. The Effective Date of the Assignment shall be the
later of the date specified in Item 5 of Schedule 1 to the Assignment ("Schedule
1") or two Business Days (or such shorter period as agreed to by the Agent)
after this Notice of Assignment and any consents and fees required by Sections
13.3.1 and
E-20
<PAGE> 104
13.3.2 of the Credit Agreement have been delivered to the Agent, provided that
the Effective Date shall not occur if any condition precedent agreed to by the
Assignor and the Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Company and
the Agent notice of the assignment and delegation referred to herein. The
Assignor will confer with the Agent before the date specified in Item 5 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Agent if the Assignment Agreement does
not become effective on any proposed Effective Date as a result of the failure
to satisfy the conditions precedent agreed to by the Assignor and the Assignee.
At the request of the Agent, the Assignor will give the Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or
before the Effective Date the processing fee of $3,000 required by Section
13.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor
and the Assignee request and direct that the Agent prepare and cause the
Borrowers to execute and deliver new Notes or, as appropriate, replacement
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note(s) received by it
from the Borrower(s) upon its receipt of new Notes in the appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. Each party consenting to the Assignment in the space indicated
below hereby releases the Assignor from any obligations to it which have been
assigned to the Assignee.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
-------------------------------- --------------------------
Title: Title:
----------------------------- -----------------------
E-21
<PAGE> 105
ACKNOWLEDGED [AND CONSENTED TO] ACKNOWLEDGED [AND CONSENTED TO]
BY [NAME OF AGENT] BY [NAME OF BORROWER]
By: By:
-------------------------------- ---------------------------
Title: Title:
----------------------------- ------------------------
[Attach photocopy of Schedule 1 to Assignment]
E-22
<PAGE> 106
EXHIBIT "G"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: The First National Bank of Chicago,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Second Amended and Restated Credit Agreement, dated as of September 30,
1998 (as the same may be amended or modified, the "Credit Agreement"),
among Illinois Tool Works Inc. (the "Company"), the Agent, and the
Lenders named therein.
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Company,
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Company in accordance with Section 14.1 of the Credit
Agreement or based on any telephonic notice made in accordance with Section
2.5.8 of the Credit Agreement.
Facility Identification Number(s)
----------------------------------------------
Customer/Account Name
----------------------------------------------------------
Transfer Funds To
--------------------------------------------------------------
--------------------------------------------------------------
For Account No.
----------------------------------------------------------------
Reference/Attention To
---------------------------------------------------------
Authorized Officer (Customer
Representative) Date
-------------------------
- -------------------------------------- ------------------------------
(Please Print) Signature
Bank Officer Name Date
-------------------------
- -------------------------------------- ------------------------------
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate
Processing)
E-23
<PAGE> 107
EXHIBIT "H"
FORM OF ASSUMPTION LETTER
______________ , 199__
To the Banks party to the
Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement
dated as of September 30, 1998 initially among Illinois Tool Works Inc., the
Lenders and The First National Bank of Chicago, as Agent (as amended and in
effect from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and used herein are used herein as defined therein.
The undersigned, _______________ (the "Subsidiary"), a _______________
corporation, wishes to become a "Borrowing Subsidiary" under the Credit
Agreement, and accordingly hereby agrees that from the date hereof it shall
become a "Borrowing Subsidiary" under the Credit Agreement and agrees that from
the date hereof and until the payment in full of the principal of and interest
on all Advances made to it under the Credit Agreement and performance of all of
its other obligations thereunder, and termination hereunder of its status as a
"Borrowing Subsidiary" as provided below, it shall perform, comply with and be
bound by each of the provisions of the Credit Agreement which are stated to
apply to the "Company" or a "Borrowing Subsidiary." Without limiting the
generality of the foregoing, the Subsidiary hereby represents and warrants that:
(i) each of the representations and warranties set forth in Sections 5.1, 5.2,
and 5.3 of the Credit Agreement is hereby made by such Subsidiary on and as of
the date hereof as if made on and as of the date hereof and as if such
Subsidiary is the "Company" and this Assumption Letter is the "Agreement"
referenced therein, and (ii) it has heretofore received a true and correct copy
of the Credit Agreement (including any modifications thereof or supplements or
waivers thereto) as in effect on the date hereof. In addition, the Subsidiary
hereby authorizes the Company to act on its behalf as and to the extent provided
for in Article II of the Credit Agreement in connection with the selection of
Types and Interest Periods for Advances, the conversion and continuation of
Advances and the solicitation of and acceptance or rejection of bids for
Competitive Bid Advances.
So long as the principal of and interest on all Advances made to the
Subsidiary under the Credit Agreement shall have been paid in full and all other
obligations of the Subsidiary under the Credit Agreement shall have been fully
performed, the Company may by not less than five Business Days' prior notice to
the Lenders terminate its status as a "Borrowing Subsidiary."
E-24
<PAGE> 108
[If the Borrowing Subsidiary is a non-U.S. entity, include the following
provisions:
The Subsidiary hereby irrevocably submits to the non-exclusive
jurisdiction or any Illinois State or Federal court sitting in Chicago,
Illinois, U.S.A., and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Assumption Letter, the Credit
Agreement or the Notes, and the Subsidiary hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
such Illinois State or Federal court. The Subsidiary hereby irrevocably waives,
to the fullest extent it may effectively do so, any objection based on venue or
inconvenient forum to the maintenance of such action or proceeding in any such
court. Nothing herein shall in any way be deemed to limit the ability of the
Lenders to serve any such writs, process, or summonses in any other manner
permitted by applicable law or to obtain jurisdiction over the Subsidiary in
such other jurisdictions, and in such manner, as may be permitted by applicable
law.]
This Assumption Letter shall be governed by, and construed in accordance
with, the laws of the State of Illinois, United States of America.
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[Name of Borrowing Subsidiary]
By
----------------------------------
Title:
-------------------------------
Address for Notices under
the Credit Agreement
Consented to:
ILLINOIS TOOL WORKS INC.
By
--------------------------------
Title:
-----------------------------
E-25
<PAGE> 109
EXHIBIT "I"
COMPLIANCE CERTIFICATE
To: The Lenders party to the
Credit Agreement described below
This Compliance Certificate is furnished pursuant to that certain Second
Amended and Restated Credit Agreement dated as of September 30, 1998 among
Illinois Tool Works Inc., the Lenders and The First National Bank of Chicago, as
Agent (as the same may be amended and in effect from time to time, the
"Agreement"). Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected or appointed ________________ of the Company;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Company and its Consolidated Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Company's compliance with Sections 6.11 and 6.12 of the
Agreement, all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Company has taken, is taking, or proposes to
take with respect to each such condition or event:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
E-26
<PAGE> 110
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this
___ day of ______________, 19___.
-------------------------------
E-27
<PAGE> 111
[SAMPLE]
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of with
Provisions of ______ and ______ of
the Agreement
E-28
<PAGE> 112
EXHIBIT "J"
LENDER ASSUMPTION AGREEMENT
Dated: ________________
Illinois Tool Works Inc.
3600 West Lake Avenue
Glenview, Illinois 60025-5811
Attention: Michael J. Robinson, Vice President and Treasurer
The First National Bank of Chicago, as agent
One First National Plaza
Suite 0088
Chicago, Illinois 60670
Attention: Deborah E. Stevens, Managing Director
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement
dated as of September 30, 1998 among Illinois Tool Works Inc. (the "Company"),
any Borrowing Subsidiaries from time to time party thereto, The First National
Bank of Chicago, individually and as Agent, and the Lenders named therein (the
"Credit Agreement"), terms defined therein being used herein as therein
defined).
The undersigned (the "Assuming Lender") proposes to become an Assuming
Lender pursuant to Section 2.5.11(ii) of the Credit Agreement and, in that
connection, hereby agrees that it shall become a Lender for purposes of the
Credit Agreement on [applicable Increase Date] and that its Commitment shall as
of such date be $________________.
The undersigned (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 5.4 thereof, the most recent financial statements referred to in Section
6.1(i) and (ii) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Lender Assumption Agreement; (ii) agrees that it will, independently and
without reliance upon the Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed
E-29
<PAGE> 113
by it as a Lender; (v) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1; (vi) confirms
that it is an Eligible Bank; and (vii) attaches, if it is not incorporated under
the laws of the United States of America or a state thereof, the forms
prescribed by the Internal Revenue Services of the United States required under
Section 2.5.15 of the Credit Agreement.
The Assuming Lender requests that the Company deliver to the Agent (to
be promptly delivered to the Assuming Lender) a Committed Note and a Competitive
Bid Note payable to the order of the Assuming Lender, dated as of the [Increase
Date].
The effective date for this Lender Assumption Agreement shall be
[applicable Increase Date]. Upon delivery of this Lender Assumption Agreement to
the Company and the Agent, and satisfaction of all conditions imposed under
Section 2.5.11(ii) as of [date specified above], the undersigned shall be a
party to the Credit Agreement and have the rights and obligations of a Lender
thereunder. As of [date specified above], the Agent shall make all payments
under the Credit Agreement in respect of the interest assumed hereby (including,
without limitation, all payments of principal, interest and commitment fees) to
the Assuming Lender.
This Lender Assumption Agreement may be executed in counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart by
telecopier shall be effective as delivery of a manually executed counterpart of
this Lender Assumption Agreement.
This Lender Assumption Agreement shall be governed by, and construed in
accordance with, the internal laws (and not the conflict of laws provisions) of
the State of Illinois.
Very truly yours,
[NAME OF ASSUMING LENDER]
By:
---------------------------
Title:
------------------------
Acknowledged and Agreed to:
ILLINOIS TOOL WORKS INC.
By:
----------------------------------------
Title:
-------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO, as Agent
By:
----------------------------------------
Title:
-------------------------------------
E-30
<PAGE> 1
EXHIBIT 10.2
Mail Suite 0088
One First National Plaza
Chicago, Illinois 60670-0088
Telephone: (312) 732-2532
Fax: (312) 732-1117
DEBORAH E. STEVENS
Managing Director
November 1, 1998
Illinois Tool Works Inc.
3600 W. Lake Avenue
Glenview, Illinois 60025-5811
Attention: Michael J. Robinson
Dear Mike:
The First National Bank of Chicago (the "Lender") is pleased to establish a line
of credit in favor of Illinois Tool Works Inc. (the "Borrower") in the amount of
$350,000,000 which shall continue from November 1, 1998 through January 30, 1999
(the "Maturity Date") unless the line of credit is terminated on an earlier date
as set forth below.
(a) Loans under this line of credit will be evidenced and governed by the
Lender's standard form of master note (the "Note"), a copy of which is
attached hereto, and will bear interest, at the Borrower's option, at:
(i) a rate equal to the sum of the Lender's corporate base rate of interest
announced by the Lender from time to time changing when and as the
corporate base rate changes, with interest payable on the last day of
each month, on the Maturity Date, and on demand thereafter; or
(ii) subject to availability and for a maturity to be agreed upon, at a
fixed rate equal to the sum of .30% per annum plus the Eurodollar rate,
where the Eurodollar rate is the rate at which deposits in U.S. dollars
in the amount and for a maturity corresponding to that of the loan are
offered by the Lender in the offshore interbank market at approximately
10 a.m. (Chicago time) two business days prior to the date on which
such loan is made, adjusted for maximum statutory reserve requirements;
or
(iii) subject to availability and for a maturity to be agreed upon, at such
other fixed rate as we may mutually agree upon from time to time.
(b) The Borrower will pay a fee of .04% per annum on the average daily
unborrowed amount of this line of credit, the fee to accrue from and
including the date of this letter until the line of credit expires or is
terminated. The fee shall be payable on the last day of each month
hereafter, on the Maturity Date and on demand thereafter.
<PAGE> 2
(c) No interest period for or maturity of a loan hereunder shall extend beyond
the Maturity Date. Interest and fees will be computed on the basis of
actual days elapsed on a 360-day year basis.
(d) The Borrower will use the proceeds of the loans hereunder for general
corporate purposes, commercial paper back-up, "Friendly Acquisitions" and
other Acquisitions specifically consented to by the Lender.
"Friendly Acquisition" means an Acquisition which has been either (a) not
disapproved by the board of directors of the corporation, or the managing
body of the firm, which is the subject of such Acquisition after such board
or managing body has been given the opportunity to consider such
Acquisition or (b) recommended by such board to the shareholders of such
corporation and, if required by applicable law, approved by such
shareholders, and excluding in any event any Acquisition involving an
"unfriendly" or contested tender offer.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower
or any Subsidiary (a) acquires any going business or all or substantially
all of the assets of any firm, corporation or division thereof, whether
through purchase of assets, merger or otherwise, or (b) directly or
indirectly acquires (in one transaction or in a series of transactions) at
least 25% (in number of votes) of the equity securities of a corporation
which have ordinary voting power for the election of directors (other than
securities having such power only by reason of the happening of a
contingency).
(e) The Borrower will provide the Lender with appropriate resolutions,
incumbency certificates, and an opinion of counsel before borrowing.
(f) The Borrower will perform, comply with and observe for the Lender's benefit
the agreements set forth in the Credit Agreement dated as of September 30,
1998, by and between the Borrower, the Lenders party thereto, and The First
National Bank of Chicago, as Agent, (the "Agreement"). For purposes
hereof, the provisions of the Agreement, together with related definitions
and ancillary provisions, are hereby incorporated herein by reference,
mutatis mutandis, and shall be deemed to continue in effect for the
Lender's benefit as in effect on the date hereof, whether or not the
Agreement remains in effect or is amended, waived or otherwise modified by
the parties thereto. A Default under and as defined in the Agreement or
the note issued thereunder shall constitute an event of default under the
Note, which shall entitle the Lender to accelerate the Note and to exercise
any and all of the remedies set forth in the Note. The Borrower may not
borrow under this line of credit if there exists any Default under and as
defined in the Agreement or the note issued thereunder or if there exists
any event which, with giving of notice, or lapse of time, or both, would be
a Default, or if the Borrower is unable to satisfy any conditions to
lending set forth in the Agreement.
(g) The Lender shall have no obligation to make a loan hereunder (and all
outstanding loans and accrued and unpaid interest, at the option of the
Lender, may be declared immediately due and payable without notice) if (i)
there is any failure by the Borrower to pay principal, interest, fees, or
other obligations when due under this letter, the Note, or any other
agreement or arrangement with the Lender, (ii) there exists any default
under the Note, or any violation or failure to comply with any provision of
the Note, or this letter, (iii) any litigation is pending or threatened
against the Borrower or any Subsidiary which might have a material adverse
2
<PAGE> 3
effect on the financial condition or results of operations of the Borrower
and its Subsidiaries, taken as a whole, (iv) there is a default under any
agreement governing indebtedness of the Borrower or any Subsidiary, (v) any
petition is filed by or against the Borrower or any Subsidiary under the
Federal Bankruptcy Code or similar state law, or (vi) the Borrower or any
Subsidiary becomes insolvent, howsoever evidenced.
"Subsidiary" means (i) any corporation if more than 50% of the outstanding
securities having ordinary voting power owned or controlled, directly or
indirectly, by the Borrower or by one or more of its Subsidiaries, or (ii)
any partnership, association, joint venture or similar business
organization if more than 50% of the ownership interests having ordinary
voting power are so owned or controlled. The Lender may require a
certificate of compliance with these conditions from the Borrower's Chief
Financial Officer or Treasurer as a condition to making any loan hereunder.
(h) The Lender may, with the Borrower's consent (which will not unreasonably be
withheld), make assignments and sell participations in this line of credit,
the Note and the loans made hereunder, and may disclose information
pertaining to the Borrower to prospective assignees and participants. Any
assignment will release the Lender of its funding obligation with respect
to the amount assigned.
(i) This line of credit shall be effective as of the date of this letter when
the Borrower has signed and returned to the Lender a copy of this letter.
(j) THIS LETTER AND THE NOTE SHALL BE GOVERNED BY THE INTERNAL LAW (AND NOT THE
LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, GIVING EFFECT, HOWEVER, TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. THE BORROWER AND THE BANK EACH
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE)
IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS LETTER OR THE
NOTE OR THE RELATIONSHIP ESTABLISHED HEREUNDER.OR THEREUNDER.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ DEBORAH STEVENS
--------------------------------------------
Title: Authorized Agent
-----------------------------------------
Accepted and agreed:
ILLINOIS TOOL WORKS INC.
By: /s/ MICHAEL J. ROBINSON
--------------------------------------------
Title: Vice President & Treasurer
-----------------------------------------
Date: October 28, 1998
-----------------------------------------
3
<PAGE> 4
MASTER NOTE
(FIXED AND FLOATING RATES)
Chicago, Illinois
November 1, 1998
$350,000,000
FOR VALUE RECEIVED, Illinois Tool Works Inc. (the "Borrower") promises to
pay to the order of THE FIRST NATIONAL BANK OF CHICAGO (the "Bank"), in lawful
money of the United States at the office of the Bank at One First National
Plaza, Chicago, Illinois, or as the Bank may otherwise direct, the lesser of
Three Hundred Fifty Million Dollars ($350,000,000) or the aggregate outstanding
unpaid principal amount of loans evidenced hereby ("Loans"), together with
interest as provided below.
Any person authorized to borrow on behalf of the Borrower (an "Authorized
Person") may request a Loan by telephone or telex. The Borrower agrees that the
Bank is authorized to honor requests which it believes, in good faith, to
emanate from an Authorized Person, whether in fact that be the case or not.
Loans may bear interest at either a fixed rate ("Fixed Rate Loans") or a
floating rate ("Floating Rate Loans"). Loans shall be Floating Rate Loans
unless the Bank and the Borrower agree to a fixed rate for a specific maturity
at or before the time of borrowing. Fixed Rate Loans shall be payable at
maturity and Floating Rate Loans shall be payable on demand. Interest on each
Fixed Rate Loan shall be payable upon the maturity of such Fixed Rate Loan and,
in the case of a Fixed Rate Loan with an original maturity in excess of three
months, interest shall also be payable on the last day of each three-month
interval while such Fixed Rate Loan is outstanding. Floating Rate Loans shall
bear interest at a rate equal to the corporate base rate of interest announced
by the Bank from time to time, changing when and as the corporate base rate
changes. Interest on Floating Rate Loans shall be payable on the last day of
each month and on demand. A Fixed Rate Loan not paid at maturity (whether by
acceleration or otherwise) and a Floating Rate Loan not paid on demand shall
bear interest at a rate equal to the sum of the corporate base rate of interest
announced by the Bank from time to time, plus 2% per annum, changing when and as
the corporate base rate changes.
Each payment of principal or interest hereunder shall be made in
immediately available funds. If any payment shall become due and payable on a
Saturday, Sunday or legal holiday under the laws of Illinois, such payment shall
be made on the next succeeding business day in Illinois and any such extended
time of the payment of principal or interest shall be included in computing
interest. All interest hereunder shall be computed for the actual number of
days elapsed on a 360-day year basis. The Borrower hereby authorizes the Bank to
deposit the proceeds of Loans to, and to charge payments of principal and
interest against, the Borrower's deposit account with the Bank.
A Fixed Rate Loan may not be prepaid prior to the agreed maturity of the
Loan without the written consent of the Bank. If, for any reason, any payment
of a Fixed Rate Loan occurs prior to maturity of such Loan, the Borrower will
indemnify the Bank for any loss or cost which the Bank
<PAGE> 5
determines is attributable to such payment, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to fund or maintain
such Fixed Rate Loan. Loans bearing interest at a rate related to the corporate
base rate may be prepaid by the Borrower, without premium or penalty.
The Borrower hereby authorizes the Bank to record Loans, maturities,
repayments, interest rates and payment dates on the schedule attached to this
note or otherwise in accordance with the Bank's usual practice. The obligation
of the Borrower to repay each Loan made hereunder shall be absolute and
unconditional notwithstanding any failure of the Bank to enter such amounts on
such schedule or to receive written confirmation of the transaction from the
Borrower. If the Bank requests a written confirmation of a requested Loan, the
Borrower will confirm the terms of each Loan by mailing a confirmation letter to
the Bank signed by any authorized person. If the Bank elects to confirm the
terms of a Loan to the Borrower, the Borrower will notify the Bank in writing
within 10 days after the Borrower's receipt of such confirmation if it believes
such confirmation to be inaccurate, and the Borrower hereby waives any right to
contest the accuracy of such confirmation after such 10-day period. In the
event of disagreement as to the terms of a transaction, the Bank's records shall
govern, absent manifest error.
If any change in any law, rule, regulation or directive (including, without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) imposes any condition the result of which is to increase the cost to the
Bank of making, funding or maintaining any Fixed Rate Loan or reduces any amount
receivable by the Bank hereunder in connection with a Fixed Rate Loan, the
Borrower shall pay the Bank the amount of such increased expense incurred or the
reduction in any amount received which the Bank determines is attributable to
making, funding and maintaining the Fixed Rate Loans.
The Bank may, with the consent of the Borrower (which shall not be
unreasonably withheld), elect to sell participations in or assign its rights
under Loans. The Borrower agrees that if it fails to pay any Loan when due, any
purchaser of an interest in such Loan shall be entitled to seek enforcement of
this note if the purchaser is permitted to do so pursuant to the terms of the
participation agreement between the Bank and such purchaser.
The Borrower hereby authorizes the Bank and any other holder of an interest
in this note (a "Holder") to disclose confidential information relating to the
financial condition or operations of the Borrower (i) to any affiliate of the
Bank or any Holder, (ii) to any purchaser or prospective purchaser of an
interest in any Loan, (iii) to legal counsel, accountants, and other
professional advisors to the Bank or any Holder, (iv) to regulatory officials,
(v) as requested or required by law, regulation, or legal process or (vi) in
connection with any legal proceeding to which the Bank or any other holder is a
party.
-2-
<PAGE> 6
Nothing in this note shall constitute a commitment to make loans to the
Borrower. In addition to, and without limitation of, any rights of the Bank
under applicable law, if any amount payable hereunder is not paid when due,
there is any material adverse change in the Borrower's or any guarantor's
financial condition, there is a default under any agreement governing
indebtedness of the Borrower or any guarantor, any petition is filed by or
against the Borrower or any guarantor under the Federal Bankruptcy Code or
similar state law or if the Borrower or any guarantor becomes insolvent,
howsoever evidenced, the Bank may declare all unpaid principal and interest on
Fixed Rate Loans and unpaid fees immediately due and payable. If any amount
payable hereunder is not paid when due or upon demand, as applicable, then any
indebtedness from the Bank to the Borrower may be offset and applied toward the
payment of all unpaid principal, interest and fees payable hereunder, whether or
not such amounts, or any part thereof, shall then be due. The Borrower
expressly waives any presentment, demand, protest or notice in connection with
this note now, or hereafter, required by applicable law and agrees to pay all
costs and expenses of collection.
THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAW (AND NOT THE LAW OF
CONFLICTS) OF THE STATE OF ILLINOIS, GIVING EFFECT, HOWEVER, TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. THE BORROWER AND THE BANK EACH HEREBY WAIVE TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS NOTE OR THE RELATIONSHIP ESTABLISHED
HEREUNDER.
ILLINOIS TOOL WORKS INC.
By: /s/ MICHAEL J. ROBINSON
Title: Vice President & Treasurer
-3-
<PAGE> 7
SCHEDULE
to be attached and become a part of
the Master Note dated November 1, 1998,
executed by Illinois Tool Works Inc.
and payable to
The First National Bank of Chicago
<TABLE>
<CAPTION>
If Fixed Rate Loan
Indicate
<S> <C> <C> <C> <C> <C> <C>
If Demand Unpaid
Date Floating Rate Principal Balance Initials of Person
of Transaction Amount of Loan Loan, Check Here Maturity Interest Rate of Note Making Notation
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-4-
<PAGE> 8
One First National Plaza
Mail Suite 0088
Chicago, IL 60670-0088
Telephone: (312) 732-4137
Fax: (312) 732-1117
NOREEN ST. LAWRENCE
Assistant Vice President
December 28, 1998
Illinois Tool Works Inc.
3600 W. Lake Avenue
Glenview, Illinois 60025
Attention: Michael J. Robinson
RE: EXTENSION LETTER - ILLINOIS TOOL WORKS INC.
Dear Mr. Robinson:
Pursuant to the Line of Credit Agreement dated November 1, 1998 by and between
ILLINOIS TOOL WORKS INC. (the "Borrower") and The First National Bank of Chicago
(the "Lender") this writing is intended to notify you of an extension from
January 30, 1999 (the "Maturity Date") to March 31, 1999.
Please execute this Extension Letter by signing and returning it to my
attention.
Sincerely,
ILLINOIS TOOL WORKS INC THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ MICHAEL J. ROBINSON BY: /s/ DEBORAH STEVENS
------------------------------- -------------------------------------
ITS: Vice President and Treasurer ITS: Authorized Agent
------------------------------ -------------------------------------
<PAGE> 1
<TABLE>
<CAPTION>
- ------------------------------------------
ILLINOIS TOOL WORKS INC. EXHIBIT 12.1
RATIO OF EARNINGS TO FIXED CHARGES
- ------------------------------------------
In thousands of dollars 3Q98 3Q97 1997 1996 1995 1994 1993
-------- -------- -------- -------- -------- -------- --------
- -------------------------
EARNINGS
- -------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before Income Taxes 769,307 672,179 924,351 770,315 623,708 450,283 335,870
Plus:
Fixed charges (from below) 71,212 68,833 88,707 69,757 45,195 36,850 45,208
Dividends from equity affiliates 1,842 2,773 3,667 3,747 1,591 2,799 1,714
Less:
Minority interest in subsidiaries (2,892) (807) (1,450) (859) (542) (812) (1,347)
Equity income of affiliates (3,846) (7,411) (9,370) (8,825) (5,332) (4,477) (3,967)
Preferred stock dividends of subsidiaries (3,090) (1,995) (2,660) (1,200) (1,564) - -
Capitalized interest - (3,428) (3,428) (2,010) - - -
-------- -------- -------- -------- -------- -------- --------
Net Earnings 832,533 730,144 999,817 830,925 663,056 484,643 377,478
======== ======== ======== ======== ======== ======== ========
- -------------------------
FIXED CHARGES
- -------------------------
Interest expense per Statement of Income 8,891 15,915 19,383 27,834 29,991 26,943 35,025
Leasing & Investments allocated interest
in cost of revenues 48,256 37,043 49,300 24,800 1,600 - -
Capitalized interest - 3,428 3,428 2,010 - - -
Preferred stock dividends of subsidiaries 3,090 1,995 2,660 1,200 1,564 - -
Estimate of interest within rental expense 10,975 10,452 13,936 13,913 12,040 9,907 10,183
-------- -------- -------- -------- -------- -------- --------
Total Fixed Charges 71,212 68,833 88,707 69,757 45,195 36,850 45,208
======== ======== ======== ======== ======== ======== ========
RATIO OF EARNINGS TO FIXED CHARGES 11.69 10.61 11.27 11.91 14.67 13.15 8.35
======== ======== ======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 28, 1998
included in Illinois Tool Works Inc. Form 10-K for the year ended December 31,
1997 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
-----------------------
Chicago, Illinois
January 15, 1999
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) ______
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Daniel G. Donovan, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
(312) 461-2908 phone (312) 461-3525 facsimile
(Name, address and telephone number for agent for service)
ILLINOIS TOOL WORKS INC.
(Obligor)
Delaware 36-2258310
(State of Incorporation) (I.R.S. Employer Identification No.)
3600 West Lake Street
Glenview, Illinois 60025-5811
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE> 2
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the
Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. through 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in effect
which includes the authority of the trustee to commence business and to
exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in effect
and includes the authority of the Trustee to commence business and to
exercise corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric Company, File No.
2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation, File
No. 333-20711, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 15th day of January, 1999.
HARRIS TRUST AND SAVINGS BANK
By: /s/ DGDonovan
-----------------------------
D. G. Donovan
Assistant Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ DGDonovan
-----------------------------
D. G. Donovan
Assistant Vice President
2
<PAGE> 4
'
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of September 30, 1998, as published in accordance with
a call made by the State Banking Authority and by the Federal Reserve Bank of
the Seventh Reserve District.
[HARRIS BANK LOGO] HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on September 30, 1998, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the Commissioner of
Banks and Trust Companies of the State of Illinois and by the Federal Reserve
Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin...... $ 1,097,714
Interest bearing balances................................ $ 213,712
Securities:...........................................................
a. Held-to-maturity securities $ 0
b. Available-for-sale securities $ 5,036,734
Federal funds sold and securities purchased under agreements to resell $ 48,950
Loans and lease financing receivables:
Loans and leases, net of unearned income................. $ 9,111,098
LESS: Allowance for loan and lease losses............... $ 104,900
--------------
Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b)............................. $ 9,006,198
Assets held in trading accounts....................................... $ 202,008
Premises and fixed assets (including capitalized leases).............. $ 245,290
Other real estate owned............................................... $ 365
Investments in unconsolidated subsidiaries and associated companies... $ 41
Customer's liability to this bank on acceptances outstanding.......... $ 34,997
Intangible assets..................................................... $ 260,477
Other assets.......................................................... $ 1,148,163
----------------
TOTAL ASSETS $ 17,294,649
================
</TABLE>
3
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices................................................................ $ 9,467,895
Non-interest bearing....................................................... $ 2,787,471
Interest bearing........................................................... $ 6,680,424
In foreign offices, Edge and Agreement subsidiaries, and IBF's..................... $ 1,268,759
Non-interest bearing....................................................... $ 23,329
Interest bearing........................................................... $ 1,245,430
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 IBF's:
Federal funds purchased & securities sold under agreements to repurchase............... $ 3,118,548
Trading Liabilities 110,858
Other borrowed money:..................................................................
a. With remaining maturity of one year or less $ 1,202,050
b. With remaining maturity of more than one year $ 0
Bank's liability on acceptances executed and outstanding $ 34,997
Subordinated notes and debentures...................................................... $ 225,000
Other liabilities...................................................................... $ 530,224
------------------
TOTAL LIABILITIES $ 15,958,331
==================
EQUITY CAPITAL
Common stock........................................................................... $ 100,000
Surplus................................................................................ $ 604,834
a. Undivided profits and capital reserves............................................. $ 580,271
b. Net unrealized holding gains (losses) on available-for-sale securities $ 51,213
------------------
TOTAL EQUITY CAPITAL $ 1,336,318
==================
Total liabilities, limited-life preferred stock, and equity capital.................... $ 17,294,649
==================
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
PAMELA PIAROWSKI
10/29/98
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
CHARLES SHAW
Directors.
4
