AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 24, 1995
REGISTRATION NO. 33-47081
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________
MALLINCKRODT GROUP INC.
(formerly known as IMCERA Group Inc.)
(Exact name of registrant as specified in its charter)
_________
NEW YORK 36-1263901
(State or other (I.R.S. EMPLOYER
jurisdiction of IDENTIFICATION NO.)
incorporation or
organization)
_________
7733 FORSYTH BOULEVARD
ST. LOUIS, MO 63105-1820
(314) 854-5200
(Address, including zip code, and telephone number,
including area code, of Principal Executive Offices)
ROGER A. KELLER
MALLINCKRODT GROUP INC.
7733 FORSYTH BOULEVARD
ST. LOUIS, MO 63105-1820
(314) 854-5200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________
COPIES TO:
John M. Reiss Michael A. Campbell
White & Case Mayer, Brown & Platt
1155 Avenue of the 190 S. LaSalle Street
Americas Chicago, Illinois 60603
New York, New York (312) 782-0600
10036
(212) 819-8200
_________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS THE
REGISTRANT SHALL DETERMINE.
_________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. (X)
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
<PAGE>
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. (X)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
NO.
1.1 Form of Underwriting Agreement
1.2 Form of Distribution Agreement
4.1 Form of Indenture dated as of March 15, 1985, between the Company and Morgan Guaranty
Trust Company of New York, as Trustee, including Form of Securities
4.2 First Supplemental Indenture dated as of April 1, 1992, to the Indenture dated March
15, 1985
4.3 Indenture dated as of March 15, 1985, as amended and restated as of February 15,
1995, between the Company and First Trust of New York, National Association, as
Trustee, including Form of Securities
5.1 Opinion of White & Case
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of White & Case (included in Exhibit 5.1)
25.1 Form T-1, Statement of Eligibility under Trust Indenture Act of 1939
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Post-Effective Amendment to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in St. Louis,
Missouri, on the 15th day of February, 1995.
Mallinckrodt Group Inc.
By C. RAY HOLMAN
Name: C. Ray Holman
Title: Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment has been signed below by the following Persons, in the
capacities indicated, on February 15, 1995.
<PAGE>
<TABLE>
Signature Title
<S> <C>
C. RAY HOLMAN Chairman of the Board, President and Chief
Executive Officer
C. Ray Holman
MICHAEL A. ROCCA
Senior Vice President and Chief Financial Officer
Michael A. Rocca
WILLIAM B. STONE
Vice President and Controller
(Principal Accounting Officer)
William B. Stone
RAYMOND F. BENTELE
Director
Raymond F. Bentele
WILLIAM L. DAVIS, III
Director
William L. Davis, III
RONALD G. EVENS
Director
Ronald G. Evens
ALEC FLAMM
Director
Alec Flamm
ROBERTA S. KARMEL
Director
Roberta S. Karmel
CLAUDINE B. MALONE
Director
Claudine B. Malone
MORTON MOSKIN
Director
Morton Moskin
HERVE M. PINET
Director
Herve M. Pinet
BRIAN M. RUSHTON
Director
Brian M. Rushton
DANIEL R. TOLL
Director
Daniel R. Toll
</TABLE>
INDEX TO EXHIBITS
<TABLE>
EXHIBIT SEQUENTIAL
PAGE NO.
<S> <C> <C>
<PAGE>
1.1 Form of Underwriting Agreement **
1.2 Form of Distribution Agreement **
4.1 Form of Indenture dated as of March 15, 1985 between the
Company and Morgan Guaranty Trust Company of New York, as *
Trustee, including Form of Securities
4.2 First Supplemental Indenture dated as of April 1, 1992, to the *
Indenture dated March 15, 1985
4.3 Indenture dated as of March 15, 1985, as amended and restated
as of February 15, 1995, between the Company and First Trust of **
New York, National Association, as Trustee, including Form of
Securities
5.1 Opinion of White & Case *
12.1 Computation of Ratio of Earnings to Fixed Charges *
23.1 Consent of Ernst & Young LLP *
23.2 Consent of White & Case (included in Exhibit 5.1)
25.1 Form T-1, Statement of Eligibility under Trust Indenture Act of **
1939
_____________
* Previously filed
** Filed with this Post-Effective Amendment by direct electronic transmission.
</TABLE>
Exhibit 1.1
MALLINCKRODT GROUP INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
, 199
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
As representatives of the
several Underwriters named in the
respective Pricing Agreements.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
From time to time Mallinckrodt Group Inc., a New York corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt securities (the
<PAGE>
"Securities") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Company to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the initial public offering price of
such Designated Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of
such Designated Securities and payment therefor. The Pricing Agreement
shall also specify (to the extent not set forth in the Indenture and the
registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) Two registration statements on Form S-3 (File No. 33-47081 and
33- ) in respect of the Securities have been filed with the
Securities and Exchange Commission (the "Commission"); such registration
statements as they may have been amended prior to their effectiveness and
any post-effective amendment thereto filed on or prior to the date of this
Agreement or the applicable Time of Delivery, each in the form heretofore
delivered or to be delivered to the Representatives (for themselves and for
each of the other underwriters), have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other
than the prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended
(the "Act"), and such other documents listed in Annex III hereto, each in
the form heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of either of the registration statements has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus (including, if
applicable, any preliminary prospectus supplement) included in such
registration statement or filed with the Commission pursuant to Rule
424(a) of the Act, being hereinafter called a "Preliminary Prospectus".
The various parts of such registration statements, including all exhibits
<PAGE>
thereto and the documents incorporated by reference in the prospectus
contained in each of the registration statements at the time such part of
such registration statement became effective but excluding Form T-1, each
as amended at the time such part of such registration statement became
effective, being hereinafter collectively called the "Registration
Statement"; the prospectus (including, if applicable, any prospectus
supplement) relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents, at such time of
effectiveness or filing, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will comply as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and, at such time of
effectiveness or filing, as the case may be, will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Designated Securities;
(c) The Registration Statement and the Prospectus comply as to form,
and any further amendments or supplements to the Registration Statement or
the Prospectus will comply as to form, in all material respects with the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a
<PAGE>
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (except for
subsequent issuances, if any, pursuant to reservations or agreements
referred to in the Prospectus and except for subsequent repurchases by the
Company not in excess of those disclosed in the Registration Statement as
authorized as of the date the Registration Statement becomes effective) or
any material change in long-term debt of the Company or any of its
subsidiaries or any material adverse change in or affecting the general
affairs, business prospects, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus (except for subsequent issuances, if any, pursuant to
reservations or agreements referred to in the Prospectus and except for
subsequent repurchases by the Company not in excess of those disclosed in
the Registration Statement as authorized as of the date the Registration
Statement becomes effective), and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and, except as may be otherwise provided by Section 630 of the
New York Business Corporation Law, non-assessable;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued, authenticated, delivered and paid for in accordance
with the Indenture, this Agreement and the Pricing Agreement with respect
to such Designated Securities, such Designated Securities will have been
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company (subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles) entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery of
such Designated Securities (as defined in Section 4 hereof), the Indenture
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Indenture conforms in all material respects and the Designated Securities
will conform in all material respects, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to such
Designated Securities;
<PAGE>
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation, as
amended, or By-laws, as amended, of the Company or, to the best of the
Company's knowledge, any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture except such as have
been, or will have been prior to the Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(j) The Company is not, and after giving effect to each offering and
sale of the Securities will not be, an "investment company" or an entity
controlled by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(k) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida statutes;
(l) Neither the Company nor any of its significant subsidiaries, as
such term is defined in Rule 1-02 of Regulation S-X ("Significant
Subsidiaries") is in violation of its Certificate of Incorporation, as
amended, or By-laws, as amended. Neither the Company nor any of its
subsidiaries is in default in the performance or observance of any
obligation, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
may be bound; and
(m) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
<PAGE>
offer such Designated Securities for sale upon the terms and conditions set
forth herein and in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to
the extent practicable, and in such authorized denominations and registered
in such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by certified or official bank check or checks, payable to the
order of the Company in the funds specified in such Pricing Agreement, all
at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company
may agree upon in writing, such time and date being herein called the "Time
of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery of such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Securities, and
during such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information relating thereto or relating to matters discussed therein; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
<PAGE>
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earliest of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives,
(ii) the Time of Delivery for such Designated Securities, and (iii) 45 days
after the date of such Pricing Agreement not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing
or producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and
any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vi) the cost of preparing the Securities; (vii) the
fees and expenses of any Trustee and any agent of any Trustee and the fees
and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not
<PAGE>
otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 8 and Section 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers
they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that
all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Company
shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction;
(b) Mayer, Brown & Platt, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the Time
of Delivery for such Designated Securities, with respect to the valid
existence and good standing of the Company, the authorized capitalization
of the Company, this Agreement and the Pricing Agreement, the validity of
the Indenture, the Designated Securities, the Registration Statement, the
Prospectus as amended or supplemented, the documents incorporated by
reference into such Prospectus, the Investment Company Act and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) White & Case, counsel for the Company, shall have furnished to
the Representatives their written opinion (except as to subparagraphs
(iii), (vii), (viii) (insofar as subparagraph (viii) relates to consents,
approvals, authorizations, orders, registrations or qualifications of or
with any court or any governmental agency or body other than a Federal or
New York or Delaware state governmental agency or body), (xi), and (xiii)
as to which the opinion will be given by the general counsel to the
Company), dated the Time of Delivery for such Designated Securities, in
form and substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented (except for subsequent issuances, if
any, pursuant to reservations or agreements referred to in the Prospectus
and except for subsequent repurchases by the Company not in excess of those
disclosed in the Registration Statement as authorized as of the date the
Registration Statement becomes effective) and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
<PAGE>
issued and are fully paid and, except as may be otherwise provided by
Section 630 of the New York Business Corporation Law, non-assessable;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position, stockholders' equity
or results of operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company;
(v) The Designated Securities have been duly authorized, executed,
authenticated, issued and delivered and, when paid for by the Underwriters,
will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture (subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles); and the Designated Securities and the Indenture
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered by
the parties thereto and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Indenture has been duly qualified under the
Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement with
respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, nor will
such actions result in any violation of the provisions of the Certificate
of Incorporation, as amended, or By-laws, as amended, of the Company or any
statute or any order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or any
of its properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
<PAGE>
(ix) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and nothing has come to such counsel's
attention that has caused them to believe that any of such documents (other
than the financial statements and related schedules therein, as to which
such counsel need express no belief), when they became effective or were so
filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, 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 in
the case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
documents were so filed, not misleading;
(x) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery for the Designated Securities (other
than the financial statements and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act and
the rules and regulations thereunder; nothing has come to such counsel's
attention that has caused them to believe that, as of its effective date,
the Registration Statement or any further amendment thereto made by the
Company prior to the Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express no
belief) 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, as of its date, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules therein, as to which
such counsel need express no belief) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading or that, as of the Time of Delivery, either the Registration
Statement or the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no belief) 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 in
which they were made, not misleading;
(xi) Such counsel does not know of any contracts or other documents of
a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Prospectus
as amended or supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not filed
or incorporated by reference or described as required;
(xii) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act; and
(xiii) Neither the Company nor any of its Significant Subsidiaries
is in violation of its Certificate of Incorporation, as amended, or By-
<PAGE>
laws, as amended. To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is in default in the performance or
observance of any obligation, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities, the
independent auditors of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any
material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented, and
(ii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented there shall not have been any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change in or affecting the general affairs, business
prospects, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, the
effect of which, in any such case described in clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities in New York or Illinois
(in the case of Illinois, only to the extent that a general moratorium on
commercial banking activities in Illinois affects the Underwriters' ability
to fulfill their obligations hereunder at the Time of Delivery) declared by
either Federal or New York State or Illinois authorities; or (iv) an
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
<PAGE>
effect of any such event specified in this clause (iv) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of the Chairman or a Vice President and the
Controller or Treasurer of the Company as to the accuracy of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (e) of this Section and as to such
other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, 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 for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended
or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company
<PAGE>
in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
<PAGE>
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may
in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained
herein and in the applicable Pricing Agreement. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange
for the purchase of such Designated Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more than
seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as
if such person had originally been a party to the Pricing Agreement with
respect to such Designated Securities.
<PAGE>
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such
Pricing Agreement except as provided in Section 6 and Section 8 hereof;
but, if for any other reason Designated Securities are not delivered by or
on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses
approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided
in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the
Pricing Agreement.
<PAGE>
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by the Representatives upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be construed in
accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us 10 counterparts hereof.
Very truly yours,
Mallinckrodt Group Inc.
By:
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
By:
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
ANNEX I
<PAGE>
PRICING AGREEMENT
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
, 199
Dear Sirs:
Mallinckrodt Group Inc., a New York corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated , 199 (the "Underwriting
Agreement"), between the Company on the one hand and Goldman, Sachs & Co.
and J.P. Morgan Securities Inc. on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which
refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating
to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us 10 counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of
the Underwriters and the Company. It is understood that your acceptance of
<PAGE>
this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form
of which shall be submitted to the Company for examination upon request,
but without warranty on the part of the Representatives as to the authority
of the signers thereof.
Very truly yours,
Mallinckrodt Group Inc.
By:
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
By:
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
OF DESIGNATED
SECURITIES TO
UNDERWRITER BE PURCHASED
<S> <C>
GOLDMAN, SACHS & CO. $
J.P. Morgan Securities Inc.
Total $
</TABLE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT:
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus
accrued interest from to .
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus
accrued interest from to .
FORM OF DESIGNATED SECURITIES:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
INDENTURE:
Indenture, dated March 15, 1985, as amended and restated as of
February 15, 1995, and as may be further amended and supplemented, between
the Company and First Trust of New York, National Association, as trustee.
MATURITY:
INTEREST RATE:
%
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.
Address for Notices, etc.: 85 Broad Street
New York, New York 10004
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the Company's
independent certified public accountants shall furnish letters to the
Underwriters to the effect that:
(i) They are independent auditors with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and any
supplementary financial information and schedules (and, if applicable,
prospective financial statements and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their reports
thereon copies of which have been furnished to the Agents; and on the basis
of specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations thereunder, nothing came to
their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
<PAGE>
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with or is
derived from (specifying in each case which) the corresponding amounts
(after restatement where applicable) in the audited consolidated financial
statements for five such fiscal years which were included or incorporated
by reference in the Company's Annual Reports on Form 10-K for such
fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company, inspection of the minute books of the Company
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus (i) do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the related
published rules and regulations thereunder, or (ii) are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with the basis for the audited consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference in the more
recent of the Company's Annual Report on Form 10-K for the most recent
fiscal year or the Prospectus;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on
a basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the more recent of the Company's Annual Report
on Form 10-K for the most recent fiscal year or the Prospectus;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to in
Clause (B) were not determined on a basis substantially consistent with the
basis for the audited financial statements included or incorporated by
reference in the more recent of the Company's Annual Report on Form 10-K
for the most recent fiscal year or the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
and, if applicable, the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified by the
Representatives, as agreed to by the auditors, or any increases in any
items specified by the Representatives, as agreed to by the auditors, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives, as
agreed to by the auditors, or any increases in any items specified by the
Representatives, as agreed to by the auditors, in each case as compared
with the comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, as agreed to by
the auditors, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives, as
agreed to by the auditors, which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives, as agreed to by the auditors, or in documents incorporated
by reference in the Prospectus specified by the Representatives, as agreed
to by the auditors, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the
letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable
Designated Securities for purposes of the letter delivered at the Time of
Delivery for such Designated Securities.
ANNEX III
LIST OF DOCUMENTS
Exhibit 1.2
MALLINCKRODT GROUP INC.
$[ ]
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
.............., 19..
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
J.P. Morgan Securities Inc.
60 Wall Street
3rd Floor
New York, New York 10260
Ladies and Gentlemen:
Mallinckrodt Group Inc., a New York corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term Notes (the
"Securities") in an aggregate amount up to $[ ], which are
among the debt securities registered under the Registration Statement (as
defined in Section 1(a) hereof), together with such amount of the Company's
debt securities subsequently registered under the Securities Act of 1933,
as amended (the "Act"), as the Company shall, by notice to the Agents, make
subject to this Agreement, but reduced by the aggregate amount of debt
securities so registered to be or that have been sold otherwise than
pursuant to this Agreement or any Terms Agreement (as defined below) and
agrees with each of you (individually, an "Agent", and collectively, the
"Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its
own behalf, the Company hereby (i) appoints each Agent as an agent of the
Company for the purpose of soliciting and receiving offers to purchase
Securities from the Company pursuant to Section 2(a) hereof and (ii) agrees
that, except as otherwise contemplated herein, whenever it determines to
sell Securities directly to any Agent as principal, it will enter into a
separate agreement (each, a "Terms Agreement"), substantially in the form
of Annex I hereto, relating to such sale in accordance with Section 2(b)
hereof. This Distribution Agreement shall not be construed to create
either an obligation on the part of the Company to sell any Securities or
an obligation of any of the Agents to purchase Securities as principal.
The Securities will be issued under an indenture, dated as of March
15, 1985, as amended and restated as of February 15, 1995, and as may be
further amended and supplemented (the "Indenture"), between the Company and
First Trust of New York, National Association, as trustee (the "Trustee").
The Securities shall have the maturity ranges, interest rates, if any,
redemption provisions and other terms set forth in the Prospectus referred
to below as it may be amended or supplemented from time to time. The
Securities will be issued, and the terms and rights thereof established,
from time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) Two registration statements on Form S-3 (File No. 33-47081
and 33- ) in respect of the Securities have been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statements as they may have been amended prior to their
effectiveness and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to such Agent, have been
declared effective by the Commission in such form; no other document
with respect to such registration statement or document incorporated
by reference therein has heretofore been filed or transmitted for
filing with the Commission (other than the prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the Commission under
the Act and such other documents listed in Annex IV hereto, each in
the form heretofore delivered to the Agents); and no stop order
suspending the effectiveness of either of the registration statements
has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included
in such registration statements or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission under
the Act, are hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statements, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in each of the registration statements at the time such part
of each of the registration statements became effective but excluding
Form T-1, each as amended at the time such part of each of the
registration statements became effective, is hereinafter collectively
called the "Registration Statement"; the prospectus (including, if
applicable, any prospectus supplement) relating to the Securities, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
is hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus, including any supplement to the Prospectus that
sets forth only the terms of a particular issue of the Securities (a
"Pricing Supplement"), shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated therein by
reference; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to and include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed in accordance
with Section 4(a) hereof) in relation to Securities to be sold
pursuant to this Agreement, in the form filed or transmitted for
filing with the Commission pursuant to Rule 424(b) under the Act and
in accordance with Section 4(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents, at such time of effectiveness or filing, as the case may
be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
comply as to form in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and, at such time of effectiveness or
filing, as the case may be, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by any
Agent expressly for use in the Prospectus as amended or supplemented
to relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus comply as to
form, and any further amendments or supplements to the Registration
Statement or the Prospectus will comply as to form, in all material
respects with the requirements of the Act and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and will not, as
of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by any Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock (except for subsequent issuances, if any, pursuant to
reservations or agreements referred to in the Prospectus and except
for subsequent repurchases by the Company not in excess of those
disclosed in the Registration Statement as authorized as of the date
the Registration Statement becomes effective) or any material change
in long-term debt of the Company or any of its subsidiaries or any
material adverse change in or affecting the general affairs, business
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(f) The Company has an authorized capitalization as set forth in
the Prospectus (except for subsequent issuances, if any, pursuant to
reservations or agreements referred to in the Prospectus and except
for subsequent repurchases by the Company not in excess of those
disclosed in the Registration Statement as authorized as of the date
the Registration Statement becomes effective) and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid, and, except as may be
otherwise provided by Section 630 of the New York Business Corporation
Law, non-assessable;
(g) The Securities have been duly authorized, and, when issued,
authenticated, delivered and paid for pursuant to the Indenture, this
Agreement and any Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company (subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles) entitled to the benefits provided by
the Indenture, which will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms in all material respects and
the Securities of any particular issuance of Securities will conform
in all material respects to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of
Securities;
(h) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed
<PAGE>
of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, as amended, or the By-laws of the Company, as amended,
or (to the best of the Company's knowledge) any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the solicitation of offers to purchase Securities, the issue and
sale of the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any Terms Agreement or
the Indenture, except such as have been, or will have been prior to
the Commencement Date (as defined in Section 3 hereof), obtained under
the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the
Company and with purchases of Securities by such Agent as principal,
as the case may be, in each case in the manner contemplated hereby;
(i) Neither the Company nor any of its signifiant subsidiaries,
as such term is defined in Rule 1-02 of Regulation S-X ("Significant
Subsidiaries") is in violation of its Certificate of Incorporation, as
amended, or By-laws, as amended. Neither the Company nor any of its
subsidiaries is in default in the performance or observance of any
obligation, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(j) The statements set forth in the Prospectus under the caption
"Description of the Securities", insofar as they purport to constitute
a summary of the terms of the Securities, under the caption "Federal
Income Tax Consequences", and under the caption "Plan of
Distribution", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
(k) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property of the Company
or any of its subsidiaries is subject, which, if determined adversely
to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(l) The Company is not, and after giving effect to each offering
and sale of the Securities will not be, an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(m) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(n) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any debt securities of
the Company (other than such Securities) that shall have been issued
and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement;
(o) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder; and
(p) The Securities, when issued, authenticated and delivered
pursuant to the provisions of this Agreement, any Terms Agreement and
the Indenture, will be excluded or exempted under the provisions of
the Commodity Exchange Act.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
each of the Agents hereby severally and not jointly agrees, as agent
of the Company, to use its reasonable efforts to solicit and receive
offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from
time to time. So long as this Agreement shall remain in effect with
respect to any Agent, the Company shall not, without the consent of
such Agent, solicit or accept offers to purchase, or sell, any debt
securities with a maturity at the time of original issuance of
9 months or more except pursuant to this Agreement, any Terms
Agreement, or except pursuant to a private placement not constituting
a public offering under the Act or except in connection with a firm
commitment underwriting pursuant to an underwriting agreement that
does not provide for a continuous offering of medium-term debt
securities. However, the Company reserves the right to sell, and may
solicit and accept offers to purchase, Securities directly on its own
behalf in transactions with persons other than broker-dealers, and, in
the case of any such sale not resulting from a solicitation made by
any Agent, no commission will be payable with respect to such sale.
These provisions shall not limit Section 4(f) hereof or any similar
provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II as it may be
amended from time to time by written agreement between the Agents and
the Company (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each
Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them in
the Administrative Procedure. The Company will furnish to the
Trustee a copy of the Administrative Procedure as from time to time in
effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities.
As soon as practicable, but in any event not later than one business
day in New York City, after receipt of notice from the Company, the
Agents will suspend solicitation of offers to purchase Securities from
the Company until such time as the Company has advised the Agents that
such solicitation may be resumed. During such period, the Company
shall not be required to comply with the provisions of Sections 4(h),
4(i), 4(j) and 4(k). Upon advising the Agents that such solicitation
may be resumed, however, the Company shall simultaneously provide the
documents required to be delivered by Sections 4(h), 4(i), 4(j) and
4(k), and the Agents shall have no obligation to solicit offers to
purchase the Securities until such documents have been received by the
Agents. In addition, any failure by the Company to comply with its
obligations hereunder, including without limitation its obligations to
deliver the documents required by Sections 4(h), 4(i), 4(j) and 4(k),
shall automatically terminate the Agents' obligations hereunder,
including without limitation its obligations to solicit offers to
purchase the Securities hereunder as agent or to purchase Securities
hereunder as principal.
The Company may authorize any other firm (an "Additional Agent")
to act as its agent to solicit offers for the purchase of Securities
upon 24 hours' prior notice to such Agents as are at the time parties
to this Agreement. Each Additional Agent shall execute a copy of this
Agreement and become a party hereto. From and after the time such
Additional Agent shall have executed a copy of this Agreement, the
term "Agents" as used in this Agreement shall mean the Agents and such
Additional Agent.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
<TABLE>
<CAPTION>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
From more than 30 years to less than 50 years .875%
50 years and more 1.000%
</TABLE> (b) Each sale of Securities to any Agent as principal shall
be made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall otherwise agree) a Terms Agreement which
will provide for the sale of such Securities to, and the purchase
thereof by, such Agent; a Terms Agreement may also specify certain
provisions relating to the reoffering of such Securities by such
Agent; the commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall
be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth; each Terms Agreement shall
specify the principal amount of Securities to be purchased by any
Agent pursuant thereto, the price to be paid to the Company for such
Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment
for such Securities; and such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof. Each Agent
proposes to offer Securities purchased by it as principal for sale at
prevailing market prices or prices related thereto at the time of
sale, which may be equal to, greater than or less than the price at
which such Securities are purchased by such Agent from the Company.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to
the issue and delivery of such Securities and payment therefor shall
be as set forth in the Administrative Procedure. For each such sale
of Securities to an Agent as principal that is not made pursuant to a
Terms Agreement, the Company agrees to pay such Agent a commission (or
grant an equivalent discount) as provided in Section 2(a) hereof and
in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to
be purchased by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is
referred to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated
in a currency other than U.S. dollars, as agent, directly or
indirectly, not to solicit offers to purchase, and as principal under
any Terms Agreement or otherwise, directly or indirectly, not to
offer, sell or deliver, such Security in, or to residents of, the
country issuing such currency, except as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to
the Agents at the offices of Mayer, Brown & Platt, Chicago, Illinois at
11:00 a.m., New York City time, on the date of this Agreement, which date
and time of such delivery may be postponed by agreement between the Agents
and the Company but in no event shall be later than the day prior to the
date on which solicitation of offers to purchase Securities is commenced or
on which any Terms Agreement is executed (such time and date being referred
to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which
shall be disapproved by any Agent promptly after reasonable notice
thereof or (B) after the date of any Terms Agreement or other
agreement by an Agent to purchase Securities as principal and prior to
the related Time of Delivery which shall be reasonably disapproved by
any Agent party to such Terms Agreement or so purchasing as principal
promptly after reasonable notice thereof; (ii) to prepare, with
respect to any Securities to be sold through or to such Agent pursuant
to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to file
such Pricing Supplement pursuant to Rule 424(b)(3) under the Act not
later than the close of business of the Commission on the fifth
business day after the date on which such Pricing Supplement is first
used; (iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than any Pricing Supplement, at any
time prior to having afforded each Agent a reasonable opportunity to
review and comment thereon; (iv) to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Securities,
and during such same period to advise such Agent, promptly after the
Company receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or
by such Agent) has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of
the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (v) in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as such Agent may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein for as long as may be necessary to
complete the distribution or sale of the Securities; provided,
however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedure), in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference
therein, all in such quantities as such Agent may reasonably request
from time to time; and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as
principal) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify such
Agent and request such Agent, in its capacity as agent of the Company,
to suspend solicitation of offers to purchase Securities from the
Company (and, if so notified, such Agent shall cease such
solicitations as soon as practicable, but in any event not later than
one business day later); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus as then
amended or supplemented, to so advise such Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed
promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect
such compliance, provided, however, that if during such same period
such Agent continues to own Securities purchased from the Company by
such Agent as principal or such Agent is otherwise required to deliver
a prospectus in respect of transactions in the Securities, the Company
shall promptly prepare and file with the Commission such an amendment
or supplement; the Company will furnish without charge to each Agent
and to any dealer in securities as many copies as such Agent may from
time to time reasonably request of an amended prospectus or supplement
to the Prospectus which will correct such statement or omission or
effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, but in no event
later than three years after the last issuance of Securities issued
pursuant to this Agreement, to furnish to such Agent copies of all
reports or other communications (financial or other) furnished to
stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition
of the Company as such Agent may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal
and continuing to and including the later of (i) the termination of
the trading restrictions for the Securities purchased thereunder, as
<PAGE>
notified to the Company by such Agent and (ii) the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which both mature more than 9
months after such Time of Delivery and are substantially similar to
the Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as
principal not pursuant to a Terms Agreement), and each execution and
delivery by the Company of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the representations and
warranties of the Company contained in or made pursuant to this
Agreement are true and correct as of the date of such acceptance or of
such Terms Agreement, as the case may be, as though made at and as of
such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities
relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement), each time a document filed under the
Act or the Exchange Act is incorporated by reference into the
Prospectus, and each time the Company sells Securities to such Agent
as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion or opinions by Mayer, Brown &
Platt, counsel to the Agents, as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish
to such counsel such papers and information as they may reasonably
request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement
or a prospectus supplement which relates to an offering of debt
securities other than the Securities), each time a document filed
under the Act or the Exchange Act is incorporated by reference into
the Prospectus and each time the Company sells Securities to such
Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of opinions under this Section 4(i)
as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a written opinion of White & Case, counsel for
the Company, or other counsel for the Company satisfactory to such
Agent, and a written opinion of the general counsel of the Company
dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, to the effect that such Agent may rely on
the opinions of such counsel referred to in Sections 6(c) and 6(d)
hereof which were last furnished to such Agent to the same extent as
though they were dated the date of such letter authorizing reliance
(except that the statements in such last opinions shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinions, opinions of
the same tenor as the opinions of such counsel referred to in Sections
6(c) and 6(d) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date.
Notwithstanding the foregoing, the written opinion of White & Case, or
other counsel for the Company satisfactory to the Agents, shall refer
to matters specified in Section 6(c)(ix) of this Agreement to the
extent that (i) such matters were not referred to in the opinion last
given by such counsel and (ii) such matters are required to be
referred to by Section 6(c)(ix) of this Agreement;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented and each time that a document filed
under the Act or the Exchange Act is incorporated by reference into
the Prospectus, in either case to set forth financial information
included in or derived from the Company's consolidated financial
statements or accounting records, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of a letter under this
Section 4(j) as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall cause the independent
certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale,
as the case may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(e) hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company, to the
extent such financial statements and other information are available
as of a date not more than five business days prior to the date of
such letter; provided, however, that, with respect to any financial
information or other matter, such letter may reconfirm as true and
correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or
other matter made in the letter referred to in Section 6(e) hereof
which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement),
each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus and each time the
Company sells Securities to such Agent as principal and the applicable
Terms Agreement specifies the delivery of a certificate under this
Section 4(k) as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of
such supplement, amendment, incorporation or Time of Delivery relating
to such sale, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, to the
effect that the statements contained in the certificates referred to
in Section 6(j) hereof which were last furnished to such Agent are
true and correct at such date as though made at and as of such date
(except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to such date) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(j) but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
from the Company as the result of an offer to purchase solicited by
such Agent the right to refuse to purchase and pay for such Securities
if, on the related settlement date fixed pursuant to the
Administrative Procedure, any condition set forth in Section 6(a),
6(f), 6(g) or 6(h) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities
shall be substituted, for purposes of this Section 4(l), for the
respective judgments of an Agent with respect to certain matters
referred to in such Sections 6(f) and 6(h), and that such Agent shall
have no duty or obligation whatsoever to exercise the judgment
permitted under such Sections 6(f) and 6(h) on behalf of any such
person).
5. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, production,
reproduction, printing and filing of the Registration Statement, any
Preliminary Prospectus, the Prospectus and any Pricing Supplements and all
other amendments and supplements thereto and the mailing and delivering of
copies thereof to such Agent; (ii) the reasonable fees, disbursements and
expenses of counsel for the Agents in connection with the establishment of
the program contemplated hereby, any opinions to be rendered by such
counsel hereunder and under any Terms Agreement and the transactions
contemplated hereunder and under any Terms Agreement; (iii) the cost of
printing, producing or reproducing this Agreement, any Terms Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iv) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the reasonable fees and disbursements of counsel for the
Agents in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (v) any fees charged by securities
rating services for rating the Securities; (vi) any filing fees incident
to, and the fees and disbursements of counsel for the Agents in connection
with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vii) the cost of
preparing the Securities; (viii) the reasonable fees and expenses of any
Trustee and any agent of any Trustee and any transfer or paying agent of
the Company and the fees and disbursements of counsel for any Trustee or
such agent in connection with any Indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of offers to purchase
and the sale of Securities so long as such advertising expenses have been
approved by the Company; and (x) all other costs and expenses incident to
the performance by the Company of its obligations hereunder which are not
otherwise specifically provided for in this Section. Except as provided in
Sections 7 and 8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any
time ("Solicitation Time") to solicit offers to purchase the Securities and
the obligation of any Agent to purchase Securities as principal, pursuant
to any Terms Agreement or otherwise, shall in each case be subject, in such
Agent's discretion, to the condition that all representations and
warranties and other statements of the Company herein (and, in the case of
an obligation of an Agent under a Terms Agreement, in or incorporated by
reference in such Terms Agreement) are true and correct at and as of the
Commencement Date and any applicable date referred to in Section 4(k)
hereof that is prior to such Solicitation Time or Time of Delivery, as the
case may be, and at and as of such Solicitation Time or Time of Delivery,
as the case may be, the condition that prior to such Solicitation Time or
Time of Delivery, as the case may be, the Company shall have performed all
of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have been filed with
the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of such
Agent;
(b) Mayer Brown & Platt, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the matters covered in paragraphs
(i) (insofar as it relates to the Company's valid existence and good
standing), (ii) (insofar as it relates to the authorized
capitalization of the Company) (iii), (iv), (v), (vii), (viii), (x)
and (xi) of subsection (c) below, as well as such other related
matters as such Agent may reasonably request, and (ii) if and to the
extent reasonably requested by such Agent, with respect to each
applicable date referred to in Section 4(h) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, an
opinion or opinions, dated such applicable date, to the effect that
such Agent may rely on the opinion or opinions which were last
furnished to such Agent pursuant to this Section 6(b) to the same
extent as though it or they were dated the date of such letter
authorizing reliance (except that the statements in such last opinion
or opinions shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in
any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in
clause (i) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date; and in each
case such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) White & Case, counsel for the Company, or other counsel for
the Company satisfactory to such Agent, shall have furnished to such
Agent their written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof (with the exception
of the matters covered in paragraph (ix) of this subsection which will
be furnished at such times as required therein) that is on or prior to
such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented (except
for subsequent issuances, if any, pursuant to reservations or
agreements referred to in the Prospectus and except for
subsequent repurchases by the Company not in excess of those
disclosed in the Registration Statement as authorized as of
the date the Registration Statement becomes effective) and all
of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
except as may be otherwise provided by Section 630 of the New
York Business Corporation Law, non-assessable;
(iii) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the
Company;
(iv) The Securities have been duly authorized and, when
duly executed, authenticated, issued, paid for and delivered,
will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture
(subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles); and the Indenture conforms and the
Securities will conform in all material respects to the
descriptions thereof in the Prospectus as amended or
supplemented;
(v) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and the Indenture has been duly qualified
under the Trust Indenture Act;
(vi) No consent, approval, authorization, order,
registration or qualification of or with any Federal or New
York state court or governmental agency or body is required
for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the
Company of the other transactions contemplated by this
Agreement, any applicable Terms Agreement, or the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the
solicitation by the Agents of offers to purchase Securities
from the Company and with purchases of Securities by an Agent
as principal, as the case may be, in each case in the manner
contemplated hereby;
(vii) The statements set forth in the Prospectus under
the caption "Description of the Securities", insofar as they
purport to constitute a summary of the terms of the
Securities, under the caption "Federal Income Tax
Consequences", and under the caption "Plan of Distribution",
insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and
fair;
(viii) The Company is not and, after giving effect to
the offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(ix) The Securities when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Indenture, will be excluded or exempted from the provisions of
the Commodity Exchange Act, assuming the accuracy of any
certifications of factual matters furnished by any Agent in
writing to the Company in connection with the issuance
thereof. The opinion specified in this Section 6(c)(ix) shall
be required only upon the request of any Agent in connection
with a specific issuance of Securities pursuant to this
Agreement.
(x) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and nothing has come to such
counsel's attention that has caused them to believe that any
of such documents (other than the financial statements and
related schedules therein, as to which such counsel need
express no belief), when they became effective or were so
filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in the case
of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; and
(xi) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date of
such opinion (other than the financial statements and related
schedules therein, as to which such counsel need express no
<PAGE>
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (vii) of this Section 6(c), nothing has come to
such counsel's attention that has caused them to believe that,
as of its effective date, the Registration Statement or any
further amendment or supplement thereto made by the Company
prior to the date of such opinion (other than the financial
statements and related schedules 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, as of the date of
such opinion, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company
prior to the date of such opinion (other than the financial
statements and related schedules 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
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(d) The general counsel of the Company shall have furnished to
such Agent his written opinions dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent to the extent that:
(i) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(ii) The issue and sale of the Securities, the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any applicable
Terms Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions
of the Certificate of Incorporation, as amended, of the
Company or the By-laws, as amended, of the Company or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(iii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the solicitation
of offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by the
Agents of offers to purchase Securities from the Company and
with purchases of Securities by an Agent as principal, as the
case may be, in each case in the manner contemplated hereby;
(iv) Such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts
or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which
are not filed or incorporated by reference or described as
required; and
(v) Neither the Company nor any of its Significant
Subsidiaries is in violation of its Certificate of
Incorporation, as amended, or By-laws, as amended. To the
best of such counsel's knowledge, neither the Company nor any
of its subsidiaries is in default in the performance or
observance of any obligation, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be
bound;
(e) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect
set forth in Annex III hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement
relating to the Securities to be delivered at the relevant Time of
Delivery any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities
to be delivered at the relevant Time of Delivery there shall not have
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, business
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery, the
effect of which, in any such case described in Clause (i) or (ii), is
in the judgment of such Agent so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation by such
Agent of offers to purchase Securities from the Company or the
purchase by such Agent of Securities from the Company as principal, as
the case may be, on the terms and in the manner contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York or Illinois (in the case
of Illinois, only to the extent that a general moratorium on
commercial banking activities in Illinois affects any Agent's ability
to fulfill its obligations hereunder) declared by either Federal, New
York State or Illinois authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this Clause (iv) in the judgment of such Agent
makes it impracticable or inadvisable to proceed with the solicitation
of offers to purchase Securities or the purchase of the Securities
from the Company as principal pursuant to the applicable Terms
Agreement or otherwise, as the case may be, on the terms and in the
manner contemplated in the Prospectus;
(i) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency
or any Security the principal or interest of which is indexed to such
currency, currencies or composite currency, there shall not have
occurred a suspension or material limitation in foreign exchange
trading in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse change
in the existing financial, political or economic conditions of, or the
declaration of war or a national emergency by, the country or
countries issuing such currency, currencies or composite currency or
the imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency,
currencies or composite currency; and
(j) The Company shall have furnished or caused to be furnished
to such Agent certificates of the Chairman or a Vice President and the
Controller or Treasurer of the Company dated the Commencement Date and
each applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may
be, in such form as shall be reasonably satisfactory to such Agent, as
to the accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Commencement
Date or such applicable date, as the case may be, as to the matters
set forth in subsections (a) and (f) of this Section 6, and as to such
other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Securities, 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 such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly
for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Securities, 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, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any such amendment or
supplement, in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use
therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or
an admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent on the other from the
offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and each Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the
sale of Securities (before deducting expenses) received by the Company
bear to the total commissions or discounts received by such Agent in
respect thereof. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading relates to information
supplied by the Company on the one hand or by any Agent on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and each Agent agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by per
capita allocation (even if all Agents were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), an Agent shall not be required to contribute any
amount in excess of the amount by which the total public offering
price at which the Securities purchased by or through it were sold
exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The obligations of each of the
Agents under this subsection (d) to contribute are several in
proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof)
relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition to
any liability which such Agent may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of
<PAGE>
the Company and to each person, if any, who controls the Company
within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from
the Company and in performing the other obligations of such Agent hereunder
(other than in respect of any purchase by an Agent as principal, pursuant
to a Terms Agreement or otherwise), is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer
to purchase Securities from the Company was solicited by such Agent and has
been accepted by the Company, but such Agent shall not have any liability
to the Company in the event such purchase is not consummated for any
reason. If the Company shall default on its obligation to deliver
Securities to a purchaser whose offer it has accepted, the Company shall
(i) hold each Agent harmless against any loss, claim or damage arising from
or as a result of such default by the Company and (ii) notwithstanding such
default, pay to the Agent that solicited such offer any commission to which
it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in
or made pursuant to this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Agent or any controlling person of any
Agent, or the Company, or any officer or director or any controlling person
of the Company, and shall survive each delivery of and payment for any of
the Securities.
10. The provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company may be suspended or
terminated at any time by the Company as to any Agent or by any Agent as to
such Agent upon the giving of written notice of such suspension or
termination to such Agent or the Company, as the case may be. In the event
of such suspension or termination with respect to any Agent, (x) this
Agreement shall remain in full force and effect with respect to any Agent
as to which such suspension or termination has not occurred, (y) this
Agreement shall remain in full force and effect with respect to the rights
and obligations of any party which have previously accrued or which relate
to Securities which are already issued, agreed to be issued or the subject
of a pending offer at the time of such suspension or termination and (z) in
any event, this Agreement shall remain in full force and effect insofar as
the fourth paragraph of Section 2(a), and Sections 4(d), 4(e), 5, 7, 8 and
9 hereof are concerned.
11. Except as otherwise specifically provided herein, in the
applicable Terms Agreement or in the Administrative Procedure, all
statements, requests, notices and advices hereunder shall be in writing, or
by telephone if promptly confirmed in writing, and if to (i) Goldman, Sachs
& Co. shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to 85 Broad Street, New York, New
York 10004, Facsimile Transmission No. (212) 357-8680, Attention: Credit
Department, Credit Control--Medium-Term Notes, (ii) J.P. Morgan Securities,
Inc. shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to 60 Wall Street, 3rd Floor, New
York, New York 10260, Facsimile Transmission No. (212) 648-5907, Attention:
MTN Desk and (iii) the Company shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to the
address of the Company set forth in the Registration Statement: Attention:
Secretary.
12. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company, and to the
extent provided in Sections 7, 8 and 9 hereof, the officers and directors
of the Company and any person who controls any Agent or the Company, and
their respective heirs, executors, administrators, representatives,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any Terms Agreement. No purchaser
of any of the Securities through or from any Agent hereunder shall be
deemed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any
one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be an original, but all of such
respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us 10 counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement
between the Company and each of you in accordance with its terms.
Very truly yours,
Mallinckrodt Group Inc.
By:
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
By:_________________________________
(Goldman, Sachs & Co.)
By:__________________________________
Name:
Title: ANNEX I
MALLINCKRODT GROUP INC.
Debt Securities
Terms Agreement ............., 19..
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
J.P. Morgan Securities Inc.
60 Wall Street
3rd Floor
New York, New York 10260
Ladies and Gentlemen:
Mallinckrodt Group Inc., a New York company, (the "Company") proposes,
subject to the terms and conditions stated herein and in the Distribution
Agreement, dated ......................., 19.. (the "Distribution
Agreement"), between the Company on the one hand and [Name(s) of Agent(s)]
(the "Agents") on the other, to issue and sell to [Name(s) of Agent(s)] the
securities specified in the Schedule hereto (the "Purchased Securities").
Each of the provisions of the Distribution Agreement not specifically
related to the solicitation by the Agents, as agents of the Company, of
offers to purchase Securities is incorporated herein by reference in its
entirety, and shall be deemed to be part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein.
Nothing contained herein or in the Distribution Agreement shall make any
party hereto an agent of the Company or make such party subject to the
provisions therein relating to the solicitation of offers to purchase
Securities from the Company, solely by virtue of its execution of this
Terms Agreement. Each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Terms Agreement, except that each representation and warranty in Section 1
of the Distribution Agreement which makes reference to the Prospectus shall
be deemed to be a representation and warranty as of the date of the
Distribution Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Terms
Agreement in relation to the Prospectus as amended and supplemented to
relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees
to issue and sell to [Name(s) of Agent(s)] and [Name(s) of Agent(s)] agrees
to purchase from the Company the Purchased Securities, at the time and
place, in the principal amount and at the purchase price set forth in the
Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us 10 counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Mallinckrodt Group Inc.
By:
Name:
Title:
Accepted:
By:
[(Goldman, Sachs & Co.)]
By:
Name:
Title:
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes[, SERIES ....]
Aggregate Principal Amount:
[$.................... OR UNITS OF OTHER SPECIFIED CURRENCY]
[PRICE TO PUBLIC:]
Purchase Price by [NAME(S) OF AGENT(S)]
% of the principal amount of the Purchased Securities[, plus accrued
interest from ............... to ...............] [and accrued
amortization, if any, from ................. to ................]
Method of and Specified Funds for Payment of Purchase Price:
[BY CERTIFIED OR OFFICIAL BANK CHECK OR CHECKS, PAYABLE TO THE ORDER
OF THE COMPANY, IN [[NEW YORK] CLEARING HOUSE] [IMMEDIATELY AVAILABLE]
FUNDS]
[BY WIRE TRANSFER TO A BANK ACCOUNT SPECIFIED BY THE COMPANY IN [NEXT
DAY] [IMMEDIATELY AVAILABLE] FUNDS]
Indenture:
Indenture, dated as of March 15, 1985, as amended and restated as of
February 15, 1995, and as may be further amended and supplemented,
between the Company and First Trust of New York, National Association,
as trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[MONTHS AND DATES]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENTS REFERRED TO IN
SECTION 4(H).]
[(2) THE OPINION OF COUNSEL TO THE COMPANY AND THE OPINION OF GENERAL
COUNSEL OF THE COMPANY REFERRED TO IN SECTION 4(I).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(J).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(K).]
Other Provisions (including Syndicate Provisions, if applicable):
ANNEX II
Mallinckrodt Group, Inc.
Administrative Procedure
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated ......................, 19.. (the
"Distribution Agreement"), between Mallinckrodt Group Inc. (the "Company")
and Goldman, Sachs & Co. and J.P. Morgan Securities Inc. (together, the
"Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings
given such terms in the Distribution Agreement, the Prospectus as amended
or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales
of Securities directly by the Company to purchasers solicited by an Agent,
as agent, are set forth below. The terms and settlement details related to
a purchase of Securities by an Agent, as principal, from the Company will
be set forth in a Terms Agreement pursuant to the Distribution Agreement,
unless the Company and such Agent otherwise agree as provided in Section
2(b) of the Distribution Agreement, in which case the procedures to be
followed in respect of the settlement of such sale will be as set forth
below. An Agent, in relation to a purchase of a Security by a purchaser
solicited by such Agent, is referred to herein as the "Selling Agent" and,
in relation to a purchase of a Security by such Agent as principal other
than pursuant to a Terms Agreement, as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Securities
and the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to
the Trustee, as agent for The Depository Trust Company (the "Depositary")
and recorded in the book-entry system maintained by the Depositary (a
"Book-Entry Security") or a certificate issued in definitive form (a
"Certificated Security") delivered to a person designated by an Agent, as
set forth in the applicable Pricing Supplement. An owner of a Book-Entry
Security will not be entitled to receive a certificate representing such a
Security, except as provided in the Indenture or the applicable Pricing
Supplement.
Book-Entry Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and Certificated
Securities will be issued in accordance with the Administrative Procedure
set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the
Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations
under a Letter of Representation from the Company and the Trustee to the
Depositary, dated the date hereof, and a Medium-Term Note Certificate
Agreement between the Trustee and the Depositary, dated as of
.................., 19.. (the "Certificate Agreement"), and its obligations
as a participant in the Depositary, including the Depositary's Same-Day
Funds Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities
that may be sold as a result of the solicitation of offers by an Agent.
The Company may establish a fixed set of interest rates and maturities for
an offering period ("posting"). If the Company decides to change already
posted rates, it will promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry
Securities, other than those rejected by such Agent. Each Agent may, in
its discretion reasonably exercised, reject any offer received by it in
whole or in part. Each Agent also may make offers to the Company to
purchase Book-Entry Securities as a Purchasing Agent. The Company will
have the sole right to accept offers to purchase Book-Entry Securities and
may reject any such offer in whole or in part.
The Company will promptly notify the Agent or Purchasing Agent, as the
case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase
Book-Entry Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate promptly,
but in no event later than the time set forth under "Settlement Procedure
Timetable" below, the following details of the terms of such offer (the
"Sale Information") to the Company by telephone (confirmed in writing) or
by facsimile transmission or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency (it being understood that currently the Depositary
<PAGE>
accepts deposits of Global Securities denominated in U.S. dollars
only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Interest Payment Dates;
(10) Regular Record Dates;
(11) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(12) Net Proceeds to the Company;
(13) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of the
Redemption Commencement Date;
(14) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Calculation Agent; and
(xi) Initial Interest Payment Date;
(15) Name, address and taxpayer identification number of the
registered owner(s);
(16) Denomination of certificates to be delivered at settlement;
(17) Book-Entry Security or Certificated Security; and
(18) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such
Sale Information to the Trustee by facsimile transmission or other
acceptable written means. The Trustee will assign a CUSIP number to the
Global Security from a list of CUSIP numbers previously delivered to the
Trustee by the Company representing such Book-Entry Security and then
advise the Company and the Selling Agent or Purchasing Agent, as the case
may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following
settlement information to the Depositary, and the Depositary shall forward
such information to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may
be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (or, in the case of Floating Rate
Securities which reset daily or weekly, the date five calendar
days immediately preceding the applicable Interest Payment Date
and, in the case of all other Book-Entry Securities, the Regular
Record Date, as defined in the Security) and, if calculable at
that time, the amount of interest payable on such Interest
Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i)
debit such Book-Entry Security to the Trustee's participant account and
credit such Book-Entry Security to such Agent's participant account and
(ii) debit such Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Book-Entry
Security less such Agent's commission. The entry of such a deliver order
shall constitute a representation and warranty by the Trustee to the
Depositary that (a) the Global Security representing such Book-Entry
Security has been issued and authenticated and (b) the Trustee is holding
such Global Security pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to
debit such Book-Entry Security to such Agent's participant account and
credit such Book-Entry Security to the participant accounts of the
Participants with respect to such Book-Entry Security and (ii) to debit the
settlement accounts of such Participants and credit the settlement account
of such Agent for an amount equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer
to the account of the Company maintained at Morgan Guaranty Trust Company
of New York, [Address], New York, New York [Zip Code], or such other
account as the Company may have previously specified to the Trustee, in
funds available for immediate use in the amount transferred to the Trustee
in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as
of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security
to the purchaser either by transmitting to the Participants with respect to
such Book-Entry Security a confirmation order or orders through the
Depositary's institutional delivery system or by mailing a written
confirmation to such purchaser.
L. The Depositary will, at any time, upon request of the Company or
the Trustee, promptly furnish to the Company or the Trustee a list of the
names and addresses of the participants for whom the Depositary has
credited Book-Entry Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling Agent or Purchasing
Agent, as the case may be, at least ten copies of such Pricing Supplement,
not later than 5:00 p.m., New York City time, on the Business Day following
the Trade Date (as defined below), or if the Company and the purchaser
agree to settlement on the Business Day following the date of acceptance of
such offer, not later than noon, New York City time, on such date. The
Company will arrange to have ten Pricing Supplements filed with the
Commission not later than the close of business of the Commission on the
fifth Business Day following the date on which such Pricing Supplement is
first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented (including
the Pricing Supplement) in relation to such Book-Entry Security prior to or
together with the earlier of the delivery to such purchaser or its agent of
(a) the confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment
for a Book-Entry Security and the authentication and issuance of the Global
Security representing such Book-Entry Security shall constitute
"settlement" with respect to such Book-Entry Security. All orders of
Book-Entry Securities solicited by a Selling Agent or made by a Purchasing
Agent and accepted by the Company on a particular date (the "Trade Date")
will be settled on a date (the "Settlement Date") which is the fifth
Business Day (or such lesser period as may then be required by the
Commission) after the Trade Date pursuant to the "Settlement Procedure
Timetable" set forth below, unless the Company and the purchaser agree to
settlement on another Business Day which shall be no earlier than the next
Business Day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the fifth Business Day (or such
lesser period as may then be required by the Commission) after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be
completed as soon as possible but not later than the respective times (New
York City time) set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
<S> <C> <C>
A 5:00 p.m. on the Business Day following the Trade Date or 10:00 a.m. on the Business
Day prior to the Settlement Date, whichever is earlier
B 12:00 noon on the second Business Day immediately preceding the Settlement Date
C 2:00 p.m. on the second Business Day immediately preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
</TABLE>
If the initial interest rate for a Floating Rate Book-Entry Security
has not been determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 2:00 p.m. on the second
Business Day immediately preceding the Settlement Date. Settlement
Procedure "H" is subject to extension in accordance with any extension of
Fedwire closing deadlines and in the other events specified in the SDFS
operating procedures in effect on the Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m. on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal
System, as soon as practicable a withdrawal message instructing the
Depositary to debit such Book-Entry Security to the Trustee's participant
account, provided that the Trustee's participant account contains a
principal amount of the Global Security representing such Book-Entry
Security that is at least equal to the principal amount to be debited. If
a withdrawal message is processed with respect to all the Book-Entry
Securities represented by a Global Security, the Trustee will mark such
Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP
number assigned to such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not immediately reassigned. If
a withdrawal message is processed with respect to one or more, but not all,
of the Book-Entry Securities represented by a Global Security, the Trustee
will exchange such Global Security for two Global Securities, one of which
shall represent such Book-Entry Security or Securities and shall be
canceled immediately after issuance and the other of which shall represent
the remaining Book-Entry Securities previously represented by the
surrendered Global Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid
to the participants with respect to such Book-Entry Security by the
beneficial purchaser thereof (or a person, including an indirect
participant in the Depositary, acting on behalf of such purchaser), such
participants and, in turn, the Agent for such Book-Entry Security may enter
deliver orders through the Depositary's Participant Terminal System
debiting such Book-Entry Security to such participant's account and
crediting such Book-Entry Security to such Agent's account and then
debiting such Book-Entry Security to such Agent's participant account and
crediting such Book-Entry Security to the Trustee's participant account and
shall notify the Company and the Trustee thereof. Thereafter, the Trustee
will (i) immediately notify the Company of such order and the Company shall
transfer to such Agent funds available for immediate use in an amount equal
to the price of such Book-Entry Security which was credited to the account
of the Company maintained at the Trustee in accordance with Settlement
Procedure I, and (ii) deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to
perform its obligations hereunder or under the Distribution Agreement, the
Company will reimburse such Agent on an equitable basis for the loss of its
use of funds during the period when the funds were credited to the account
of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, the Depositary may take any actions in accordance
with its SDFS operating procedures then in effect. In the event of a
failure to settle with respect to one or more, but not all, of the
Book-Entry Securities to have been represented by a Global Security, the
Trustee will provide, in accordance with Settlement Procedure "D", for the
authentication and issuance of a Global Security representing the other
Book-Entry Securities to have been represented by such Global Security and
will make appropriate entries in its records. The Company will, from time
to time, furnish the Trustee with a sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated
Securities that may be sold as a result of the solicitation of offers by an
Agent. The Company may establish a fixed set of interest rates and
maturities for an offering period ("posting"). If the Company decides to
change already posted rates, it will promptly advise the Agents to suspend
solicitation of offers until the new posted rates have been established
with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated
Securities, other than those rejected by such Agent. Each Agent may, in
its discretion reasonably exercised, reject any offer received by it in
whole or in part. Each Agent also may make offers to the Company to
purchase Certificated Securities as a Purchasing Agent. The Company will
have the sole right to accept offers to purchase Certificated Securities
and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Certificated Securities. If the Company accepts an offer to
purchase Certificated Securities, it will confirm such acceptance in
writing to the Selling Agent or Purchasing Agent, as the case may be, and
the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following
details of the terms of such offer (the "Sale Information") to the Company
by telephone (confirmed in writing) or by facsimile transmission or other
acceptable written means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and initial
interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Interest Payment Dates;
(10) Regular Record Dates;
<PAGE>
(11) Selling Agent's commission or Purchasing Agent's discount, as the case
may be;
(12) Net Proceeds to the Company;
(13) If a redeemable Certificated Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
(14) If a Floating Rate Certificated Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Calculation Agent; and
(xi) Initial Interest Payment Date;
(15) Name, address and taxpayer identification number of the registered
owner(s);
(16) Denomination of certificates to be delivered at settlement;
(17) Book-Entry Security or Certificated Security; and
(18) Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security,
it will prepare a Pricing Supplement reflecting the terms of such
Certificated Security and arrange to have delivered to the Selling Agent or
Purchasing Agent, as the case may be, at least ten copies of such Pricing
Supplement, not later than 5:00 p.m., New York City time, on the Business
Day following the Trade Date, or if the Company and the purchaser agree to
settlement on the date of acceptance of such offer, not later than noon,
New York City time, on such date. The Company will arrange to have ten
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth Business Day following the date on
which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented (including
the Pricing Supplement) in relation to such Certificated Security prior to
or together with the earlier of the delivery to such purchaser or its agent
of (a) the confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or
made by a Purchasing Agent and accepted by the Company will be settled on a
date (the "Settlement Date") which is the fifth Business Day (or such
lesser period as may then be required by the Commission) after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another Business Day after the acceptance of such offer
or (b) with respect to an offer accepted by the Company prior to 10:00
a.m., New York City time, on the date of such acceptance.
Instruction from Company to Trustee for Preparation of Certificated
Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such
Sale Information to the Trustee by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time, on the Settlement
Date. Such instruction will be given by the Company prior to 3:00 p.m.,
New York City time, on the Business Day immediately preceding the
Settlement Date unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated Securities in which case such
instruction will be given by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt
of Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser
solicited by a Selling Agent, the Trustee will, by 2:15 p.m., New York City
time, on the Settlement Date, deliver the Certificated Securities to the
Selling Agent for the benefit of the purchaser of such Certificated
Securities against delivery by the Selling Agent of a receipt therefor. On
the Settlement Date the Selling Agent will deliver payment for such
Certificated Securities in immediately available funds to the Company in an
amount equal to the issue price of the Certificated Securities less the
Selling Agent's commission; provided that the Selling Agent reserves the
right to withhold payment for which it has not received funds from the
purchaser. The Company shall not use any proceeds advanced by a Selling
Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing
Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Purchasing
Agent against delivery of payment for such Certificated Securities in
immediately available funds to the Company in an amount equal to the issue
price of the Certificated Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment
to the Selling Agent for a Certificated Security, the Selling Agent will
promptly notify the Trustee and the Company thereof by telephone (confirmed
in writing) or by facsimile transmission or other acceptable written means.
The Selling Agent will immediately return the Certificated Security to the
Trustee. Immediately upon receipt of such Certificated Security by the
Trustee, the Company will return to the Selling Agent an amount equal to
the amount previously paid to the Company in respect of such Certificated
Security. The Company will reimburse the Selling Agent on an equitable
basis for its loss of the use of funds during the period when they were
credited to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Certificated Security.
ANNEX III
Accountants' Letter
Pursuant to Sections 4(j) and 6(e), as the case may be, of the
Distribution Agreement, the Company's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent auditors with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
any supplementary financial information and schedules (and, if
applicable, prospective financial statements and/or pro forma
financial information) examined by them and included or incorporated
by reference in the Registration Statement or the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial
data, pro forma financial information, prospective financial
statements and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been furnished to the Agents;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been furnished
to the Agents; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations thereunder, nothing came
to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with or is derived from (specifying in each case which) the
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company, inspection of the minute
books of the Company since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus (i) do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations thereunder, or (ii) are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included or
incorporated by reference in the more recent of the Company's
Annual Report on Form 10-K for the most recent fiscal year or the
Prospectus;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the more recent of the Company's
Annual Report on Form 10-K for the most recent fiscal year or the
Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the more recent of the Company's
Annual Report on Form 10-K for the most recent fiscal year or the
Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
published rules and regulations thereunder and, if applicable,
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Agents, as agreed to by
the auditors, or any increases in any items specified by the
Agents, as agreed to by the auditors, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net
income or other items specified by the Agents, as agreed to by
the auditors, or any increases in any items specified by the
Agents, as agreed to by the auditors, in each case as compared
with the comparable period of the preceding year and with any
other period of corresponding length specified by the Agents, as
agreed to by the auditors, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by
the Agents, as agreed to by the auditors, which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Agents, as agreed to by the
auditors, or in documents incorporated by reference in the Prospectus
specified by the Agents, as agreed to by the auditors, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement
Date referred to in Section 6(e) thereof and to the Prospectus as amended
or supplemented (including the documents incorporated by reference therein)
as of the date of the amendment, supplement, incorporation or the Time of
Delivery relating to the Terms Agreement requiring the delivery of such
letter under Section 4(j) thereof.ANNEX IV
List of Documents:
Exhibit 4.3
MALLINCKRODT GROUP INC.
and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
as Trustee
<PAGE>
Indenture
Dated as of March 15, 1985
As Amended and Restated as of February 15, 1995
Debt Securities
CROSS REFERENCE SHEET<F1>
<F1>This cross reference sheet shall not, for any purpose, be deemed to be
a part of the Indenture. Between
Provisions of Sections 310 through 318 (a) inclusive of Trust Indenture
Act and the Amended and Restated Indenture dated as of March 15, 1985, as
amended and restated as of February 15, 1995, between Mallinckrodt Group
Inc. and First Trust of New York, National Association, as Trustee.
<TABLE>
<CAPTION>
Section of Act Section of Indenture
<S> <C>
310 (a) (1), (2) and (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
310 (a) (3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
310 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08
310 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13 (a) and (c)
311 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13 (b)
311 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01 and 6.02 (a)
312 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02 (b)
312 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02 (c)
313 (a) (1), (2), (3), (4), (6), (7) and (8) . . . . . . . . . . . . . . . . . 6.04
313 (a) (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
313 (b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
313 (b) (2), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
314 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03 (a)
314 (a) (2) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03 (b)
314 (a) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03 (c)
314 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
314 (c) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05
314 (c) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05
314 (c) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
314 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
314 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05
314 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
315 (a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
315 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
315 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
316 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.07
316 (a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
316 (a) last para . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.04
316 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04
316 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <F2>
317 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02
317 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
<F2>Not Applicable.
</TABLE> TABLE OF CONTENTS<F1>
<F1>This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<TABLE>
<CAPTION> Page
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Security or Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Debt Security . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Office of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Sale and Leaseback Transaction . . . . . . . . . . . . . . . . . . . . . . . . 9
Secured Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Senior Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Specified Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO.
DEBT SECURITY FORMS.
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.02. Forms of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.03. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . 20
ARTICLE THREE.
THE DEBT SECURITIES.
SECTION 3.01. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.03. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.04. Execution of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.05. Temporary Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.06. Exchange and Registration of Transfer of Debt Securities . . . . . . . . . . . . . . 25
SECTION 3.07. Mutilated, Destroyed, Lost or Stolen Debt Securities . . . . . . . . . . . . . . . . 26
SECTION 3.08. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . 27
SECTION 3.09. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.10. Cancellation of Debt Securities Paid, etc. . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE FOUR.
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS.
SECTION 4.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.02. Notice of Redemption; Selection of Debt Securities . . . . . . . . . . . . . . . . . 30
SECTION 4.03. Payment of Debt Securities Called for Redemption . . . . . . . . . . . . . . . . . . 31
SECTION 4.04. Provisions with Respect to any Sinking Funds . . . . . . . . . . . . . . . . . . . . 32
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.02. Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office . . . . . . . . . . . . . . . . . 35
SECTION 5.04. Provisions as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.05. Restriction on Creation of Secured Debt . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.06. Restriction on Sale and Leaseback Transactions . . . . . . . . . . . . . . . . . . . 40
SECTION 5.07. Restriction on Transfer of Principal Facility to Unrestricted Subsidiaries . . . . . 40
SECTION 5.08. Certificate to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.09. Waivers of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE SIX.
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 6.01. Holders' Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.02. Preservation and Disclosure of Lists . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.03. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.04. Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.02. Payment of Debt Securities Upon Default; Suit Therefor . . . . . . . . . . . . . . . 48
SECTION 7.03. Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.04. Proceedings by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.05. Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.06. Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by Majority of Holders . . . . . . . 53
SECTION 7.08. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 7.09. Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.10. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . 54
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties and Responsibilities of Trustee . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.02. Reliance on Documents, Opinions, etc. . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 8.03. No Responsibility for Recitals, etc. . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.04. Trustee and Agents May Own Debt Securities . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.05. Moneys to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.06. Compensation and Expenses of Trustee . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.07. Officers' Certificate as Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.08. Conflicting Interest of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.09. Eligibility of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.10. Resignation or Removal Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.11. Acceptance by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.12. Succession by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.13. Limitation on Rights of Trustee as a Creditor . . . . . . . . . . . . . . . . . . . 63
SECTION 8.14. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE NINE.
CONCERNING THE HOLDERS.
SECTION 9.01. Action by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 9.02. Proof of Execution by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.03. Who Are Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.04. Company-Owned Debt Securities Disregarded . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.05. Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . . 72
ARTICLE TEN.
HOLDERS' MEETINGS.
SECTION 10.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.02. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.03. Call of Meetings by Company or Holders . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.04. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.07. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . . . 76
SECTION 11.02. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . 78
SECTION 11.03. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 11.04. Notation on Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee . . . . 79
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE AND CONVEYANCE.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . . . . . 79
SECTION 12.02. Debt Securities to be Secured in Certain Events . . . . . . . . . . . . . . . . . . 80
SECTION 12.03. Successor Corporation to be Substituted . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 12.04. Opinion of Counsel to Be Given Trustee . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 13.01. Satisfaction, Discharge and Defeasance of Debt Securities of any Series . . . . . . 81
SECTION 13.02. Defeasance of Debt Securities of any Series . . . . . . . . . . . . . . . . . . . . 84
SECTION 13.03. Application of Trust Funds; Indemnification . . . . . . . . . . . . . . . . . . . . 85
SECTION 13.04. Return of Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Debt Securities Solely Corporate Obligations . . . . . . . . . . . . 86
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Provisions Binding on Successors of the Company . . . . . . . . . . . . . . . . . . 87
SECTION 15.02. Indenture for Sole Benefit of Parties and Holders of Debt Securities . . . . . . . 87
SECTION 15.03. Addresses for Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 15.04. New York Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 15.05. Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . 88
SECTION 15.06. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 15.07. Trust Indenture Act to Control . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 15.08. Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 15.09. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 15.10. Determination of Principal Amount . . . . . . . . . . . . . . . . . . . . . . . . . 89
</TABLE>
THIS INDENTURE, dated as of March 15, 1985, as amended and restated as
of February 15, 1995, between Mallinckrodt Group Inc., a New York
corporation (the "Company"), and First Trust of New York, National
Association, a national banking association duly organized and existing
under the laws of the United States of America, as trustee (the "Trustee").
RECITALS OF THE COMPANY
As of March 15, 1985, the Company, then known as International
Minerals & Chemical Corporation and renamed IMCERA Group Inc. in 1990,
executed an indenture with Morgan Guaranty Trust Company of New York. Such
indenture was amended by a First Supplemental Indenture dated as of April
1, 1992. In 1994, the Company again changed its name, to Mallinckrodt
Group Inc., and First Trust of New York, National Association, succeeded
Morgan Guaranty Trust Company of New York as trustee under such indenture.
The Company desires, and the Trustee has agreed, to enter into this
Indenture to reflect the changes described in this paragraph and certain
other changes, in accordance with Section 11.01 hereof.
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issue from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness to be issued in
one or more series as in this Indenture provided, up to such principal
amount or amounts as may from time to time be authorized in or pursuant to
one or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase or
acceptance of the Debt Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of the
respective Holders from time to time of the Debt Securities or of any
series thereof as follows: ARTICLE ONE.
Definitions.
SECTION 1.01. Definitions. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act or which are by reference therein defined in the
Securities Act of 1933, as amended, shall have (except as herein otherwise
expressly provided or unless the context otherwise requires) the meanings
assigned to such terms in said Trust Indenture Act and in said Securities
Act as in force at the date of the execution of this Indenture. All
references to such terms herein shall be both to the singular or the
plural, as the context so requires.
AFFILIATE:
The term "Affiliate", when used with respect to any specified Person,
means any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person. For
the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
AUTHENTICATING AGENT:
The term "Authenticating Agent" shall mean the agent of the Trustee,
if any, which at the time shall be appointed and acting pursuant to Section
8.14.
AUTHORIZED NEWSPAPER:
The term "Authorized Newspaper" means a newspaper published in the
English language, customarily published on each Business Day and of general
circulation in The City of New York.
BOARD OF DIRECTORS:
<PAGE>
The term "Board of Directors" shall mean the Board of Directors of the
Company or any committee of such Board designated by the Board of Directors
or the by-laws or the certificate of incorporation of the Company to act
for such Board for purposes of this Indenture.
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a resolution certified by
a Vice President, the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
BUSINESS DAY:
The term "Business Day" shall mean, except as otherwise provided
pursuant to Section 3.01 for Debt Securities of any series, a day that in
The City of New York is not a day on which banking institutions are legally
authorized or obligated to close and (i) with respect to Debt Securities
denominated in Australian dollars, any day that is not a day on which
banking institutions are legally authorized or obligated to close in both
Sydney, Australia and Melbourne, Australia, (ii) with respect to Debt
Securities denominated in European Currency Units ("ECU"), any day that is
not a day designated as an "ECU Non-Settlement Day" by the ECU Banking
Association in Paris or otherwise generally regarded in the ECU interbank
market as a day on which payments in ECU shall not be made, and (iii) with
respect to Debt Securities denominated in a currency or composite currency
other than U.S. Dollars, Australian dollars or ECU, any day that is not a
day on which banking institutions are legally authorized or obligated to
close in the principal financial center of the country of the currency.
COMPANY:
The term "Company" shall mean Mallinckrodt Group Inc., a New York
corporation, and, subject to Article Twelve, shall include its successors
and assigns.
COMPANY REQUEST AND COMPANY ORDER:
The terms "Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman
of the Board, Vice Chairman of the Board, President or a Vice President and
by another Vice President, its Treasurer, its Secretary, an Assistant
Secretary or an Assistant Treasurer, and delivered to the Trustee.
CONSOLIDATED NET TANGIBLE ASSETS:
The term "Consolidated Net Tangible Assets" shall mean (a) the total
amount of assets (less applicable reserves and other properly deductible
items) after deducting therefrom
(i) all liabilities and liability items, except for
indebtedness payable by its terms more than one year from the
date of incurrence thereof (or renewable or extendable at the
option of the obligor for a period ending more than one year
after such date of incurrence), capitalized rent, capital stock
and surplus, surplus reserves and deferred income taxes and
credits and other non-current liabilities, and (ii) all goodwill,
trade names, trademarks, patents, unamortized debt discount,
unamortized expense incurred in the issuance of debt, and other
like intangibles (except prepaid royalties)
which, in each case, under generally accepted accounting principles in
effect on the date hereof would be included on a consolidated balance sheet
of the Company and its Restricted Subsidiaries, less (b) loans, advances,
equity investments and contingent liabilities of every nature (other than
accounts receivable arising from the sale of merchandise in the ordinary
course of business) at the time outstanding which were made or incurred by
the Company and its Restricted Subsidiaries to, in or for Unrestricted
Subsidiaries or to, in or for corporations while they were Unrestricted
Subsidiaries and which at the time of computation are not Subsidiaries.
DEBT SECURITY OR DEBT SECURITIES:
The terms "Debt Security" or "Debt Securities" shall mean any
unsecured notes, debentures, bonds, or other indebtedness of any series, as
the case may be, issued by the Company from time to time, and authenticated
and delivered under this Indenture.
DEBT SECURITY REGISTER:
The term "Debt Security Register" shall have the meaning set forth in
Section 3.06.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
HOLDER:
The term "Holder" means any Person in whose name a Debt Security of
any series is registered in the Debt Security Register applicable to Debt
Securities of such series.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented.
INTEREST PAYMENT DATE:
The term "Interest Payment Date", when used with respect to any series
of Debt Securities, means the Stated Maturity of an instalment of interest
on such Debt Securities.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate", when used with respect to the
Company, shall mean a certificate signed by the Chairman of the Board, Vice
Chairman of the Board, the President or any Vice President and by the
Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary,
the Controller or any Assistant Controller of the Company and delivered to
the Trustee. Each such certificate shall include the statements provided
for in Section 15.05 if, and to the extent, required by the provisions of
such Section.
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
who may be other counsel satisfactory to the Trustee. Each such opinion
shall include the statements provided for in Section 15.05, if, and to the
extent, required by the provisions of such Section.
ORIGINAL ISSUE DISCOUNT DEBT SECURITY:
The term "Original Issue Discount Debt Security" means any Debt
Security which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 7.01.
OUTSTANDING:
The term "Outstanding", when used with respect to Debt Securities or
Debt Securities of any series, means, as of the date of determination, all
such Debt Securities theretofore authenticated and delivered under this
Indenture, except:
(i) such Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Debt Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any paying agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own paying agent) for the Holders of such Debt Securities;
provided, however, that if such Debt Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) such Debt Securities in exchange for or in lieu of which
other such Debt Securities have been authenticated and delivered
pursuant to this Indenture, or such Debt Securities which have been
paid, pursuant to this Indenture, unless proof satisfactory to the
Trustee is presented that any such Debt Securities are held by Persons
in whose hands any of such Debt Securities are legal, valid and
binding obligation of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, such Debt Securities owned by the Company or such other obligor
upon such Debt Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver,
only such Debt Securities which the Trustee knows to be so owned shall be
so disregarded. Such Debt Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Debt Securities and that the pledgee is not the Company or any other
such obligor upon such Debt Securities or any Affiliate of the Company or
such other obligor. In case of a dispute as to such right, the decision of
the Trustee upon the advice of counsel shall be full protection to the
Trustee. Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all such
Debt Securities, if any, known by the Company to be owned or held by or for
the account of any of the above described Persons; and, subject to the
provisions of Section 8.01, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all such Debt Securities not listed therein are
Outstanding for the purpose of any such determination.
PERSON:
The term "Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PREDECESSOR DEBT SECURITY:
The term "Predecessor Debt Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Debt Security, and for the
purposes of this definition, any Debt Security authenticated and delivered
under Section 3.07 in lieu of a mutilated, lost, destroyed or stolen Debt
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Debt Security.
PRINCIPAL OFFICE OF THE TRUSTEE:
The term "principal office of the Trustee," or other similar terms,
shall mean the principal office of the Trustee in The City of New York, New
York, at which at any particular time its corporate trust business shall be
administered, which office on the date of the amendment and restatement
hereof is located at 100 Wall Street, Suite 1600, New York, New York 10005.
PRINCIPAL FACILITY:
The term "Principal Facility" shall mean any manufacturing plant,
warehouse, office building or parcel of real property (including fixtures
but excluding leases and other contract rights which might otherwise be
deemed real property) owned by the Company, or any Restricted Subsidiary,
whether owned on the date hereof or thereafter, provided each such plant,
warehouse, office building or parcel of real property has a gross book
value (without deduction for any depreciation reserves) at the date as of
which the determination is being made of in excess of two percent of the
Consolidated Net Tangible Assets of the Company and the Restricted
Subsidiaries, other than any such plant, warehouse, office building or
parcel of real property or portion thereof which, in the opinion of the
Board of Directors (evidenced by a certified resolution thereof delivered
to the Trustee), is not of material importance to the business conducted by
the Company and its Subsidiaries taken as a whole.
REDEMPTION DATE:
The term "Redemption Date", when used with respect to any Debt
Security to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
REDEMPTION PRICE:
The term "Redemption Price", when used with respect to any Debt
Security to be redeemed, means the price specified in such Debt Security at
which it is to be redeemed pursuant to this Indenture.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any Debt
Security on any Interest Payment Date means the date, if any, specified in
such Debt Security as the "Regular Record Date."
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 of the Executive Committee of the Board of Directors, the Chairman
of the Trust Committee, the President, any Vice President, any Second or
Assistant Vice President, the Cashier, the Secretary, the Treasurer, any
Trust Officer, any Assistant Trust Officer, or any other officer or
assistant officer of the Trustee customarily performing corporate trust
functions.
RESTRICTED SUBSIDIARY:
The term "Restricted Subsidiary" shall mean (a) any Subsidiary other
than an Unrestricted Subsidiary and (b) any Subsidiary which was an
Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by the Company (by certified resolution of the Board of
Directors delivered to the Trustee) to be a Restricted Subsidiary;
provided, however, that the Company may not designate any such Subsidiary
to be a Restricted Subsidiary if the Company would thereby breach any
covenant or agreement herein contained (on the assumption that any
transaction to which such Subsidiary was a party at the time of such
designation and which would have given rise to Secured Debt or constituted
a Sale and Leaseback Transaction at the time it was entered into had such
Subsidiary then been a Restricted Subsidiary was entered into at the time
of such designation).
SALE AND LEASEBACK TRANSACTION:
The term "Sale and Leaseback Transaction" shall mean any sale or
transfer made by the Company or one or more Restricted Subsidiaries (except
a sale or transfer made to the Company or one or more Restricted
Subsidiaries) of any Principal Facility which (in the case of a Principal
Facility which is a manufacturing plant, warehouse, office building or
developed mining property) has been in operation, use, or commercial
production (exclusive of test and start-up periods) by the Company or any
Restricted Subsidiary for more than 120 days prior to such sale or
transfer, or which (in the case of Principal Facility which is a parcel of
real property other than a manufacturing plant, warehouse, office building
or developed mining property) has been owned by the Company or any
Restricted Subsidiary for more than 120 days prior to such sale or
transfer, if such sale or transfer is made with the intention of leasing,
or as part of an arrangement involving the lease, of such Principal
Facility to the Company or a Restricted Subsidiary (except a lease for a
period not exceeding 36 months, made with the intention that the use of the
leased Principal Facility by the Company or such Restricted Subsidiary will
be discontinued on or before the expiration of such period). The following
shall not be deemed to create or be defined to be a Sale and Leaseback
Transaction: (a) (i) the sale or other transfer of minerals in place for a
period of time until, or in an amount such that, the purchaser will realize
therefrom a specified amount of money (however determined) or a specified
amount of such minerals, or (ii) any nonrecourse royalty or lease
arrangement or any interest in property of the character commonly referred
to as a "production payment" or (b) any Secured Debt permitted under
Section 5.05 hereof.
SECURED DEBT:
The term "Secured Debt" shall mean any indebtedness for money borrowed
by, or evidenced by a note or other similar instrument of, the Company or a
Restricted Subsidiary, and any other indebtedness of the Company or a
Restricted Subsidiary on which by the terms of such indebtedness interest
is paid or payable, including obligations evidenced or secured by leases,
installment sales agreements or other instruments in connection with
industrial development bonds as defined in Section 103(c)(2) of the
Internal Revenue Code of 1954 (other than indebtedness owed by a Restricted
Subsidiary to the Company, by a Restricted Subsidiary to another Restricted
Subsidiary or by the Company to a Restricted Subsidiary), which in any such
case is secured by (a) a Security Interest in any Principal Facility, or
(b) a Security Interest in any shares of stock owned directly or indirectly
by the Company in a Restricted Subsidiary or in indebtedness for money
borrowed by a Restricted Subsidiary from the Company or another Restricted
Subsidiary. The securing in the foregoing manner of any previously
unsecured debt shall be deemed to be the creation of Secured Debt at the
time such security is given. The amount of Secured Debt at any time
outstanding shall be the maximum aggregate amount then owing thereon by the
Company and its Restricted Subsidiaries. The sale or other transfer of the
following shall not be deemed to create or be defined to be Secured Debt:
(i) minerals in place for a period of time until, or in an amount such
that, the purchaser will realize therefrom a specified amount of money
(however determined) or a specified amount of such minerals, or (ii) any
non-recourse royalty or lease arrangement or any interest in property of
the character commonly referred to as a "production payment".
SECURITY INTEREST:
The term "Security Interest" shall mean any mortgage, pledge, lien,
encumbrance or other security interest which secures payment or performance
of an obligation.
SENIOR FUNDED DEBT:
The term "Senior Funded Debt" shall mean any obligation of the Company
or any Restricted Subsidiary which constituted funded debt as of the date
of its creation and which, in the case of such funded debt of the Company,
is not subordinate and junior in right of payment to the prior payment of
the Debt Securities. As used herein "funded debt" shall mean any
obligation payable by its terms more than one year from the date of
incurrence thereof (or renewable or extendable at the option of the obligor
for a period ending more than one year after such date of incurrence),
which under generally accepted accounting principles should be shown on the
balance sheet as a liability.
SPECIAL RECORD DATE:
<PAGE>
The term "Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.08.
SPECIFIED CURRENCY:
The term "Specified Currency" shall mean the currency in which a Debt
Security is denominated, which may include U.S. Dollars, any foreign
currency or any composite of two or more currencies.
STATED MATURITY:
The term "Stated Maturity" when used with respect to any Debt Security
or any instalment of principal thereof or of interest thereon, means the
date specified in such Debt Security as the fixed date on which the
principal of such Debt Security, or such instalment of interest, is due and
payable.
SUBSIDIARY:
The term "Subsidiary" shall mean any corporation of which the Company,
or the Company and one or more Subsidiaries, or any one or more
Subsidiaries, directly or indirectly own voting securities entitling the
Holders thereof to elect a majority of the directors, either at all times
or so long as there is no default or contingency which permits the Holders
of any other class or classes of securities to vote for the election of one
or more directors.
TRUST INDENTURE ACT:
The term "Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended.
TRUSTEE:
The term "Trustee" shall mean First Trust of New York, National
Association, and, subject to the provisions of Article Eight hereof, shall
also include its successors and assigns as Trustee hereunder.
UNRESTRICTED SUBSIDIARY:
The term "Unrestricted Subsidiary" shall mean (a) any Subsidiary
acquired or organized after the date hereof, provided, however, that such
Subsidiary is not a successor, directly or indirectly, to, and does not
directly or indirectly own any equity interest in, any Restricted
Subsidiary, (b) any Subsidiary the principal business and assets of which
are located outside the United States of America (including its territories
and possessions) or Canada or both, (c) any Subsidiary the principal
business of which consists of financing the acquisition or disposition of
machinery, equipment, inventory, accounts receivable and other real,
personal and intangible property by Persons including the Company or a
Subsidiary, (d) any Subsidiary the principal business of which is owning,
leasing, dealing in or developing real property for residential or office
building purposes, and (e) any Subsidiary substantially all the assets of
which consist of stock or other securities of an Unrestricted Subsidiary or
Unrestricted Subsidiaries of the character described in clauses (a) through
(d) of this paragraph, unless and until, in each of the cases specified in
this paragraph, any such Subsidiary shall have been designated to be a
Restricted Subsidiary pursuant to clause (b) of the definition of
"Restricted Subsidiary".
U.S. DOLLARS:
The term "U.S. Dollars" shall mean such coin or currency of the United
States of America as at the relevant time is legal tender for the payment
of public and private debts.
U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. Government Obligations" means securities which are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged, or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentally of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case are not callable or redeemable at the option
of the issuer thereof. U.S. Government Obligations shall also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by
such custodian for the account of the holder of a depository receipt;
provided, however, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
interest on or principal of the U.S. Government Obligation evidenced by
such depository receipt. For series of Debt Securities issued after
February 15, 1995, the term "U.S. Government Obligations" shall also
include money market funds customarily used by the Trustee for the
investment of trust funds, which money market funds consist exclusively of
obligations which are themselves U.S. Government Obligations as described
in the preceding two sentences. ARTICLE TWO.
Debt Security Forms.
SECTION 2.01. Forms Generally. The Debt Securities of each series and
the certificates of authentication thereon shall have such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon, as
may be required to comply with the rules of any securities exchange, or as
may, consistently herewith, be determined by the officers executing such
Debt Securities, as evidenced by their signing of such Debt Securities.
Any portion of the text of any Debt Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Debt Security.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange, all
as determined by the officers executing such Debt Securities, as evidenced
by their signing of such Debt Securities.
SECTION 2.02. Forms of Debt Securities. The Debt Securities of each
series shall be in substantially the form set forth in this Section 2.02 or
shall be in such other form approved from time to time by or pursuant to a
Board Resolution, or established in one or more indentures supplemental
hereto. Prior to the delivery of such Debt Securities to the Trustee for
authentication in any form approved by or pursuant to a Board Resolution,
the Company shall deliver to the Trustee the Board Resolution by or
pursuant to which such form of Debt Security has been approved, which Board
Resolution shall have attached thereto a true and correct copy of the form
of such Debt Securities which has been approved by or pursuant thereto, or,
if a Board Resolution authorizes a specific officer or officers to approve
a form of such Debt Securities, a certificate of such officer or officers
approving the form of such Debt Securities attached thereto. In the case
of any Debt Securities denominated in a Specified Currency other than U.S.
Dollars, references in the following form of Debt Securities would be
changed to references to such Specified Currency, and references therein to
the coin or currency of the United States of America would be changed to
references to the coin or currency of the country issuing such Specified
Currency.
Form of Face of Debt Security.
MALLINCKRODT GROUP INC.
No. _____ $
MALLINCKRODT GROUP INC., a corporation organized and existing under
the laws of the State of New York (hereinafter called the "Company", which
term shall include any successor corporation), for value received, hereby
promises to pay to ___________________, or registered assigns, the
principal sum of ________________________________________ Dollars on
_______________________ [If the Security is to bear interest prior to
maturity, insert --, and to pay interest thereon from _____________ or from
the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on ____________ and _____________ in each
year, commencing _____________, at a rate of ________% per annum, until the
principal hereof is paid or made available for payment [if applicable
insert--, and (to the extent that the payment of such interest shall be
legally enforceable) at the rate of _____% per annum on any overdue
principal and premium and on any overdue instalment of interest]. The
interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture hereinafter
referred to, be paid to the Person in whose name this Debt Security (or one
or more Predecessor Debt Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ________
or _________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder
on such Regular Record Date and may either be paid to the person in whose
name this Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Debt Securities of this series not
less than ten days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debt Securities of this series may be
listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture.]
[If the Security is not to bear interest prior to maturity, insert -- The
principal of this Debt Security shall not bear interest except in the case
of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Debt
Security shall bear interest at the rate of ___% per annum (to the extent
that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date payment
of such principal has been made or duly provided for. Interest on any
overdue principal shall be payable on demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the
rate of ___% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, or such other place of payment as may be
designated by the Company from time to time, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Debt Security Register.
Reference is hereby made to the further provisions of this Debt
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Debt Security shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
Dated: MALLINCKRODT GROUP INC.
By
Chairman of the Board
Attest:
Secretary
Form of Reverse of Debt Security. This Debt Security is one of a duly
authorized issue of securities of the Company (herein called the "Debt
Securities"), issued and to be issued in one or more series under an
Amended and Restated Indenture, dated as of March 15, 1985, as amended and
restated as of February 15, 1995 (herein called the "Indenture"), between
the Company and First Trust of New York, National Association, a national
banking association duly organized and existing under the laws of the
United States of America, as trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and of the Holders of the
Debt Securities and of the terms upon which the Debt Securities are, and
are to be, authenticated and delivered. This Debt Security is one of the
series designated on the face hereof [, limited in aggregate principal
amount to $_____________].
[If applicable, insert--The Debt Securities of this series are subject
to redemption upon not less than 30 days' notice by mail, [if applicable,
insert -- (1) on ____________ in any year commencing with the year
__________ and ending with the year __________ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after _________, 19__], as a
whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [on or before ______________, ____%, and if redeemed] during the
12-month period beginning ______________ of the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert --
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Debt Securities, or one or more Predecessor Debt
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon less than 30 days' notice by mail, (1) on ______________ in
any year commencing with the year ______________ and ending with the year
______________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after _______], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning _________________________ of
the years indicated.
REDEMPTION PRICE
FOR REDEMPTION
REDEMPTION PRICE FOR
THROUGH OPERATION
REDEMPTION OTHERWISE
OF THE
THAN THROUGH OPERATION
YEAR
SINKING FUND
OF THE SINKING FUND
and thereafter at a Redemption Price equal to ____% of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Debt
Securities, or one or more Predecessor Debt Securities, of record at the
close of business on the relevant Record Dates referred to on the face
herself, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
______________, redeem any Debt Securities of this series as contemplated
by [Clause (2) of] the preceding paragraph as a part of, or in anticipation
of, any refunding operation by the application, directly or indirectly, of
moneys borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less than
______________% per annum.]
[The sinking fund for this series provides for the redemption on
_________, in each year beginning with the year ___________ and ending with
the year _______ of [not less than] $__________ [("mandatory sinking fund")
and not more than $________] aggregate principal amount of Debt Securities
of this series. [Debt Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise
required to be made.]
In the event of redemption of this Debt Security in part only, a new
Debt Security in part only, a new Debt Security or Debt Securities of this
series for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
[If the Debt Security is not an Original Issue Discount Debt Security,
-- If an Event of Default with respect to Debt Securities of this series
shall occur and be continuing, the principal of the Debt Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Debt Security is an Original Issue Discount Debt Security, --
If an Event of Default with respect to Debt Securities of this series shall
occur and be continuing, an amount of principal of the Debt Securities of
this series may be declared due and payable in the manner and with the
effect provided in the Indenture. Such amount shall be equal to -- insert
formula for determining the amount. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest , if
any, on the Debt Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Debt Securities of each
series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of greater than 50% in
aggregate principal amount of the Debt Securities at the time Outstanding
of each series to be affected. The Indenture also contains provisions
<PAGE>
permitting the Holders of a majority in aggregate principal amount of the
Debt Securities of each series at the time Outstanding, on behalf of the
Holders of all Debt Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by
the Holder of this Debt Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Debt Security and of any Debt
Security issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Debt Security.
Except in the event the Company deposits money or government
securities as provided in Section 13.01 of the Indenture, the obligation of
the Company to pay the principal of (and premium, if any) and interest on
this Debt Security at the times, place and rate, and in the coin or
currency herein provided is absolute and unconditional.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debt Security is registrable in the
Debt Security Register, upon surrender of this Debt Security for
registration of transfer at the office or agency of the Company in any
place where the principal of (and premium, if any) and interest on this
Debt Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Debt
Security registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Debt Securities of
this series of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
The Debt Securities of this series are issuable only in registered
form without coupons in denominations of $_________ and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Debt Securities of this series are
exchangeable for a like aggregate principal amount of Debt Securities of
this series of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debt Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Debt Security is registered
as the owner hereof for all purposes, whether or not this Debt Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in Debt Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 2.03. Form of Trustee's Certificate of Authentication. The
following is the form of the Certificate of Authentication of the Trustee
to be endorsed on the face of all Debt Securities substantially as follows:
This is one of the Debt Securities of the series designated herein
issued under the within-mentioned Indenture.
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION,
as Trustee
By
Authorized Officer
ARTICLE THREE.
The Debt Securities.
SECTION 3.01. Title and Terms. The aggregate principal amount of Debt
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Debt Securities may be issued up to the aggregate principal
amount of Debt Securities from time to time authorized by or pursuant to a
Board Resolution.
The Debt Securities may be issued in one or more series. All Debt
Securities of each series issued under this Indenture shall in all respects
be equally and ratably entitled to the benefits hereof with respect to such
series without preference, priority or distinction on account of the actual
time or times of the authentication and delivery or maturity of the Debt
Securities of such series. There shall be established in or pursuant to a
Board Resolution, and set forth in an Officers' Certificate or the extent
not established in a Board Resolution, or established in one or more
indentures supplemental hereto, prior to the issuance of Debt Securities of
any series:
(1) the title of the Debt Securities of the series(which
shall distinguish the Debt Securities of the series from all
other series of Debt Securities);
(2) any limit upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Debt Securities of that
series pursuant to this Article Three, the second paragraph of
Section 4.03, or Section 11.04);
(3) any provision for the issuance of the Debt Securities of
such series in tranches at various times and having various
terms;
(4) the Specified Currency of such Debt Securities; and
(5) any and all terms, including any election as to any
optional provisions, which shall be necessary to complete the
form of Debt Security for such series, which shall be one of the
forms approved or established pursuant to Section 2.02 hereof.
The applicable Board Resolution or supplemental indenture may provide
that Debt Securities of any particular series may be issued in separate
tranches at various times, having different terms (including, but not
limited to, Stated Maturity, Specified Currency and the rate, if any, at
which such Debt Securities shall bear interest); such tranches shall for
all purposes under this Indenture, including, but not limited to, voting
and Events of Default, be treated as Debt Securities of a single series.
SECTION 3.02. Denominations. The Debt Securities of each series shall
be issuable in registered form without coupons in such denominations as
shall be specified as contemplated in Section 3.01. In the absence of any
specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of 1,000 units
of the Specified Currency.
SECTION 3.03. Payment of Principal and Interest. The principal of,
premium, if any, and interest on the Debt Securities shall be payable at
the office or agency of the Company designated for that purpose in the
Borough of Manhattan, The City of New York, as provided in Section 5.02;
provided, however, that interest may be payable at the option of the
Company by check mailed to the address of the Person entitled thereto as
such address shall appear on the Debt Security Register on the record date
for such interest payment.
SECTION 3.04. Execution of Debt Securities. The Debt Securities shall
be executed manually or by facsimile in the name and on behalf of the
Company by its Chairman of the Board of Directors, its President, one of
its Vice Presidents or its Treasurer and by its Secretary or one of its
Assistant Secretaries under its corporate seal (which may be printed,
engraved or otherwise reproduced thereon, by facsimile or otherwise). Only
such Debt Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, manually executed by the
Trustee, shall be entitled to the benefits of this Indenture or be valid or
become obligatory for any purpose. Such certificate by the Trustee upon
any Debt Security executed by the Company shall be conclusive evidence that
the Debt Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have executed any of the
Debt Securities shall cease to be such officer before the Debt Securities
so executed shall have been authenticated and delivered by the Trustee, or
disposed of by the Company, such Debt Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who
executed such Debt Securities had not ceased to be such officer of the
Company; and any Debt Securities may be executed on behalf of the Company
by such Persons as, at the actual date of the execution of such Debt
Security, shall be the proper officers of the Company, although at the date
of such Debt Security or of the execution of this Indenture any such Person
was not such an officer.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series,
properly created in accordance with Section 3.01 and executed by the
Company, to the Trustee for authentication; and the Trustee shall
authenticate and deliver such Debt Securities upon Company Order.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to the Opinion of Counsel to be furnished
to the Trustee pursuant to Section 15.05 and the Officers' Certificate
relating to the issuance of any series of Debt Securities pursuant to
Sections 15.05 and 3.01, an Opinion of Counsel (which may be at the time of
establishment of a series of Debt Securities, whether or not any such Debt
Securities are then to be authenticated and delivered, but only to the
extent that such Officers' Certificate and Opinions of Counsel reasonably
contemplate the issuance thereafter of all the Debt Securities of such
series) stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of this Indenture as to form and constitute
sufficient authority hereunder for the Trustee to authenticate
and deliver such Debt Securities;
(2) all laws and Indenture requirements with respect to the
form and execution by the Company of the supplemental indenture,
if any, have been complied with, the execution and delivery of
the supplemental indenture, if any, does not violate the terms of
this Indenture, the Company has corporate power to execute and
deliver any such supplemental indenture and has taken all
necessary corporate action for those purposes and any such
supplemental indenture has been executed and delivered and
constitutes the legal, valid and binding obligation of the
Company enforceable in accordance with its terms;
(3) the form and terms of such Debt Securities have been
established pursuant to resolutions of the Board of Directors of
the Company in conformity with the provisions of this Indenture;
(4) all laws and Indenture requirements with respect to the
execution and delivery by the Company of such Debt Securities
have been complied with, the authentication and delivery of the
Debt Securities by the Trustee does not violate the terms of this
Indenture, the Company has the corporate power to issue such Debt
Securities and such Debt Securities, assuming due authentication
and delivery by the Trustee, constitute legal, valid and binding
obligations of the Company in accordance with their terms and are
entitled to the benefits of this Indenture, equally and ratably
with all other Outstanding Debt Securities, if any, of such
series; and
(5) such other matters as the Trustee may reasonably
request.
Such Opinion of Counsel may state that the opinions set forth in
paragraphs 2 and 4 above, insofar as they relate to the legality, validity
and binding nature of the obligations of the Company, are subject, as to
enforcement of remedies, to bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
The Trustee shall not be required to authenticate such Debt Securities
if the issue thereof will adversely affect the Trustee's own rights, duties
or immunities under the Debt Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee or such action
would expose the Trustee to personal liability to existing Holders.
Unless otherwise provided in the form of Debt Security for any series,
all Debt Securities shall be dated the date of their authentication.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such
Debt Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Debt Security has been duly authenticated and
delivered hereunder.
SECTION 3.05. Temporary Debt Securities. Pending the preparation of
definitive Debt Securities of any series, the Company may execute, and upon
receipt of the documents required by Sections 2.02. 3.01 and 3.04, together
with a Company Order, the Trustee shall authenticate and deliver, such
temporary Debt Securities which may be printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denominations,
substantially of the tenor of such definitive Debt Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such temporary
Debt Securities may determine, as evidenced by their execution of such
temporary Debt Securities.
If temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
any series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series, upon surrender
of the temporary Debt Securities of such series at any office or agency
maintained by the Company for such purposes as provided in Section 5.02,
without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Debt Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefore a like
principal amount of definitive Debt Securities of such series having the
same interest rate and Stated Maturity and bearing interest from the same
date of any authorized denominations. Until so exchanged, the temporary
Debt Securities of such series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of such
series.
SECTION 3.06. Exchange and Registration of Transfer of Debt
Securities. Debt Securities may be exchanged for a like aggregate
principal amount of Debt Securities of such series (and tranche, if
applicable) that are of other authorized denominations. Debt Securities to
be exchanged shall be surrendered at any office or agency to be maintained
for such purpose by the Company, as provided in Section 5.02, and the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefore the Debt Security or Debt Securities of authorized
denominations which the Debt Securityholder making the exchange shall be
entitled to receive. Each agent of the Company appointed pursuant to
Section 5.02 as a person authorized to register and register transfer of
Debt Securities is sometimes herein referred to as a "Debt Security
registrar."
The Company shall keep, at each such office or agency of the Company
maintained for such purpose, as provided in Section 5.02, a register for
each series of Debt Securities hereunder (the registers of all Debt
Security registrars being herein sometimes collectively referred to as the
"Debt Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of Debt
Securities and shall register the transfer of Debt Securities as in this
Article Three provided. At all reasonable times, such Debt Security
registrar shall be open for inspection by the Trustee and any Debt Security
registrar other than the Trustee. Upon due presentment for registration of
transfer of any Debt Security at any such office or agency, the Company
shall execute and register and the Trustee shall authenticate and deliver
in the name of the transferee or transferees a new Debt Security or Debt
Securities of authorized denominations for an equal aggregate principal
amount. Registration or registration of transfer of any Debt Security by
any Debt Security registrar in the registry books maintained by such Debt
Security registrar, and delivery of such Debt Security, duly authenticated,
shall be deemed to complete the registration or registration of transfer of
such Debt Security.
The Company will at all times designate one Person (who may be the
Company and who need not be a Debt Security registrar) to act as repository
of a master list of names and addresses of Holders of the Debt Securities.
The Trustee shall act as such repository unless and until some other Person
is, by written notice from the Company to the Trustee and each Debt
Security registrar, designated by the Company to act as such. The Company
shall cause each Debt Security registrar to furnish to such repository, on
a current basis, such information as such repository may reasonably request
as to registrations, transfers, exchanges and other transactions effected
by such registrar, as may be necessary or advisable to enable such
repository to maintain such master list on as current a basis as is
reasonably practicable.
No Person shall at any time be appointed as or act as a Debt Security
registrar unless such Person is at such time empowered under applicable law
to act as such and duly registered to act as such under and to the extent
required by applicable law and regulations.
All Debt Securities presented to a Debt Security registrar for
registration of transfer shall be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and such Debt Security registrar duly executed by the registered
Holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connections therewith.
The Company shall not be required to issue, exchange or register a
transfer of (a) any Debt Securities of any series for a period of 15 days
next preceding the mailing of a notice of redemption of Debt Securities of
such series and ending at the close of business on the day of the mailing
of a notice of redemption of Debt Securities of such series so selected for
redemption, or (b) any Debt Securities selected called or being called for
redemption except, in the case of any Debt Security to be redeemed in part,
the portion thereof no so to be redeemed.
All Debt Securities issued in exchange for or upon registration of
transfer of Debt Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered for such exchange or
registration of transfer.
SECTION 3.07. Mutilated, Destroyed, Lost or Stolen Debt Securities.
In case any temporary or definitive Debt Security 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 Debt
Security of the same series and tranche, bearing a number, letter or other
distinguishing mark not contemporaneously Outstanding, in exchange and
<PAGE>
substitution for the mutilated Debt Security, or in lieu of and in
substitution for the Debt Security so destroyed, lost or stolen. In every
case the applicant for a substituted Debt Security shall furnish to the
Company and to the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and to the
Trustee evidence to their satisfaction of the destruction, loss or theft of
such Debt Security and of the ownership thereof.
The Trustee shall authenticate any such substituted Debt Security and
deliver the same upon the written request or authorization of any officer
of the Company. Upon the issuance of any substituted Debt Security, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith. In case any Debt Security which has
matured or is about to mature shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substituted Debt Security,
pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated Debt Security) if the applicant for such payment
shall furnish to the Company and to the Trustee such security or indemnity
as may be required by them to save each of them harmless and, in case of
destruction, loss or theft, evidence satisfactory to the Company and to the
Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
Every substituted Debt Security issued pursuant to the provisions of
this Section 3.07 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Debt Security shall be found at any time, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all
other Debt Securities duly issued hereunder. All Debt Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities and shall preclude (to the extent
permitted by law) any and all other rights or remedies with respect to the
replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 3.08. Payment of Interest; Interest Rights Preserved.
Interest which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date, on any Debt Security, shall unless otherwise
provided in such Debt Security be paid to the Person in whose name the Debt
Security (or one or more Predecessor Debt Securities) is registered at the
close of business on the Regular Record Date for such interest. Payments
of interest on the Debt Securities of any series shall be made in the
currency or currencies, or composite currency or currencies, and at the
place or places, specified in the form of Debt Securities of such series.
Unless otherwise stated in the form of Debt Security of a series,
interest on the Debt Securities of any series hall be computed on the basis
of a 360 day year comprised of twelve 30 day months.
Any interest on any Debt Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names any such Debt Securities
(or their respective Predecessor Debt Securities) are registered
at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Debt
Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date of the payment of such Defaulted
Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of
the payment. The trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefore to be
mailed, first-class postage prepaid, to each Holder of such Debt
Securities, at his address at it appears in the Debt Security
Register, not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at
least once in an Authorized Newspaper, but such publication shall
not be a condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefore having been mailed
as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Debt Securities (or their respective
Predecessor Debt Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Debt Securities of that
series may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon Transfer of or in exchange for
or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 3.09. Persons Deemed Owners. The Company, the Trustee and any
agent of the Company or the Trustee shall treat the Person in whose name
any Debt Security is registered as the owner of such Debt Security for the
purpose of receiving payment of principal of, premium, if any, and (subject
to Section 3.08) interest on, such Debt Security and for all other purposes
whatsoever whether or not such Debt Security be overdue, and neither the
Company, the Trustee, not any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.10. Cancellation of Debt Securities Paid, etc. All Debt
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer or delivered in satisfaction in whole or in part
of any sinking fund obligation shall, if surrendered to the Company or any
agent of the Trustee or the Company under this Indenture, be delivered to
the Trustee and promptly cancelled by it, or, if surrendered to the
Trustee, shall be promptly cancelled by it, and no Debt Securities shall be
issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall destroy cancelled Debt
Securities and deliver a certificate of such destruction to the Company.
ARTICLE FOUR.
Redemption of Debt Securities; Sinking Funds.
SECTION 4.01. Applicability of Article. The Company may reserve the
right to redeem and pay before Stated Maturity all or any part of the Debt
Securities of any series, either by optional redemption, sinking fund
(mandatory or optional) or otherwise, by provision therefor in the form of
Debt Security for such series approved or established pursuant to Section
2.02 and on such terms as are specified in such form or the Officers'
Certificate delivered pursuant to Section 3.01 or the indenture
supplemental hereto as provided in Section 3.01 with respect to Debt
Securities of such series. Redemption of Debt Securities of any series
shall be made in accordance with the terms of such Debt Securities and, to
the extent that this Article does not conflict with such terms, in
accordance with this Article.
SECTION 4.02. Notice of Redemption; Selection of Debt Securities. In
case the Company shall desire to exercise the right to redeem all, or, as
the case may be, any part of a series of Debt Securities pursuant to
Section 4.01, it shall fix a date for redemption and it, or, at its
request, the Trustee in the name of and at the expense of the Company,
shall mail a notice of such redemption at least 30 and not more than 60
days prior to the date fixed for redemption to the Holders of Debt
Securities so to be redeemed as a whole or in part at their last addresses
as the same appear on the Debt Securities Register. Such mailing shall be
by first class mail. The notice if mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Debt Security
designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Debt Security.
Notice of redemption shall be given in the name of the Company and
shall specify the date fixed for redemption, the redemption price at which
Debt Securities of any series are to be redeemed, the place of payment
(which shall be at the offices or agencies to be maintained by the Company
pursuant to Section 5.02), that payment of the redemption price will be
made upon presentation and surrender of such Debt Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue, and the Section of this
Indenture pursuant to which Debt Securities will be redeemed. In case less
than all Debt Securities of any series are to be redeemed, the notice of
redemption shall also identify the particular Debt Securities to be
redeemed as a whole or in part and shall state that the redemption is for
the sinking fund, if such is the case. In case any Debt Security is to be
redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Debt Security,
a new Debt Security or Debt Securities of such series in aggregate
principal amount equal to the unredeemed portion thereof will be issued
without charge to the Holder.
If less than all the Debt Securities of any series are to be redeemed,
the Company shall give the Trustee 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 of Debt Securities to be
redeemed, which shall be an integral multiple of 1,000 units of the
Specified Currency, and thereupon the Trustee shall select, in such manner
as in its sole discretion it shall deem appropriate and fair, the Debt
Securities or portions thereof to be redeemed, and shall as promptly as
practicable notify the Company of the Debt Securities or portions thereof
so selected.
Prior to the date fixed for redemption specified in the notice of
redemption given as provided in this Section 4.02, the Company will deposit
with the Trustee or with the paying agent an amount of money sufficient to
redeem on the date fixed for redemption all the Debt Securities so called
for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption.
The Trustee shall not mail any notice of redemption of any series of
Debt Securities during the continuation of any default in payment of
interest on any series of Debt Securities when due or of any Event of
Default, except that where notice of redemption with respect to any series
of Debt Securities shall have been mailed prior to the occurrence of such
default or Event of Default, the Trustee shall redeem such Debt Securities
provided funds are deposited with it for such purpose.
SECTION 4.03. Payment of Debt Securities Called for Redemption. If
notice of redemption has been given as herein provided, the Debt Securities
or portions of Debt Securities with respect to which such notice has been
given 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 said date
(unless the Company shall default in the payment of such Debt Securities or
portions thereof at the redemption price, together with interest accrued to
said date) interest on the Debt Securities or portions of Debt Securities
so called for redemption shall cease to accrue, and such Debt Securities
and portions of Debt Securities shall be deemed not to be Outstanding
hereunder and shall not be entitled to any benefit under this Indenture
except to receive payment of the redemption price, together with accrued
interest to the date fixed for redemption. On presentation and surrender
of such Debt Securities at the place of payment in said notice specified,
the said Debt Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided,
however, that any installments of interest becoming due on the date fixed
for redemption shall be payable to the Holders of such Debt Securities, or
one or more previous Debt Securities evidencing all or a portion of the
same debt as that evidenced by such particular Debt Securities, registered
as such on the relevant record dates according to their terms and the
provisions of Section 3.08.
Upon presentation and surrender of any Debt Security redeemed in part
only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of the same series having the same interest
rate and Stated Maturity and bearing interest from the same date, of any
authorized denominations as requested by such Holder, in aggregate
principal amount equal to the unredeemed portion of the Debt Security so
presented and surrendered.
SECTION 4.04. Provisions with Respect to any Sinking Funds. Unless
the form or terms of any series of Debt Securities shall provide otherwise,
in lieu of making all or any part of any mandatory sinking fund payment
with respect to such series of Debt Securities in cash, the Company may at
its option (1) deliver to the Trustee for cancellation any Debt Securities
of such series theretofore acquired by the Company, or (2) receive credit
for any Debt Securities of such series (not previously so credited)
acquired by the Company and theretofore delivered to the Trustee for
cancellation, then Debt Securities so delivered or credited shall be
credited at the applicable sinking fund Redemption Price with respect to
Debt Securities of such series.
On or before the 60th day next preceding each sinking fund Redemption
Date, the Company will deliver to the Trustee a certificate signed by the
Treasurer or any Assistant Treasurer of the Company specifying (i) the
portion of the mandatory sinking fund payment to be satisfied by deposit of
funds, by delivery of Debt Securities theretofore purchased or otherwise
acquired by the Company (which Debt Securities shall accompany such
certificate) and by credit for Debt Securities acquired by the Company and
theretofore delivered to the Trustee for cancellation redeemed by the
Company and stating that the credit to be applied had not theretofore been
so applied or applied in lieu of retiring Senior Funded Debt pursuant to
Section 5.06 and (ii) whether the Company intends to exercise its right, if
any, to make an optional sinking fund payment, and, if so, the amount
thereof. Such certificate shall also state that no Event of Default has
occurred and is continuing. Such certificate shall be irrevocable and upon
its delivery the Company shall be obligated to make the payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In case of the failure of the Company on or before the 60th
day next preceding each sinking fund Redemption Date to deliver such
certificate (or to deliver the Debt Securities specified in this
paragraph), the sinking fund payment due on the next succeeding sinking
fund payment date shall be paid entirely in funds and shall be sufficient
to redeem the principal amount of Debt Securities as a mandatory sinking
fund payment, without the option to deliver or credit Debt Securities as
provided in the first paragraph of this Section 4.04 and without the right
to make an optional sinking fund payment as provided herein.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Debt Securities made in cash plus any unused
balance of any preceding sinking fund payments with respect to Debt
Securities of such series made in cash shall exceed $100,000 (or a lesser
sum if the Company shall so request), unless otherwise provided by the
terms of such series of Debt Securities, said cash shall be applied by the
Trustee on the sinking fund Redemption Date with respect to Debt Securities
of such series at the applicable sinking fund Redemption Price with respect
to Debt Securities of such series, together with accrued interest, if any,
to the date fixed for redemption, with the effect provided in Section 4.03.
The Trustee shall select, in the manner provided in Section 4.02, for
redemption on such sinking fund Redemption Date a sufficient principal
amount of Debt Securities of such series to utilize said cash and shall
thereupon cause notice of redemption of the Debt Securities of such series
for the sinking fund to be given in the manner provided in Section 4.02
(and with the effect provided in Section 4.03) for the redemption of Debt
Securities in part at the option of the Company. Any sinking fund moneys
not so applied or allocated by the Trustee to the redemption of Debt
Securities of such series shall be added to the next cash sinking fund
payment with respect to Debt Securities of such series received by the
Trustee and, together with such payment, shall be applied in accordance
with the provisions of this Section 4.04. Any and all sinking fund moneys
with respect to Debt Securities of any series held by the Trustee at the
maturity of Debt Securities of such series, and not held for the payment or
redemption of particular Debt Securities of such series, shall be applied
by the Trustee, together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of the principal of the Debt
Securities of such series at maturity.
On or before each sinking fund Redemption Date provided with respect
to Debt Securities of any series, the Company shall pay to the Trustee in
cash a sum equal to all accrued interest, if any, to the date fixed for
redemption on Debt Securities to be redeemed on such sinking fund
Redemption Date pursuant to this Section 4.04.
ARTICLE FIVE.
Particular Covenants of the Company.
SECTION 5.01. Payment of Principal, Premium and Interest. The Company
will duly and punctually pay or cause to be paid the principal of and
premium, if any, and interest on each of the Debt Securities at the place
(subject to Section 3.03), at the respective times and in the manner
provided in each series of Debt Securities and in this Indenture.
SECTION 5.02. Offices for Notices and Payments, etc. (a) So long as
the Debt Securities of any series remain Outstanding, the Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Debt Securities may be presented for payment, an office or
agency where the Debt Securities may be presented for registration of
transfer and for exchange as in this Indenture provided, and an office or
agency where notices and demands to or upon the Company in respect of the
Debt Securities or of this Indenture may be served. The office of the
Company in the Borough of Manhattan, The City of New York for all of the
foregoing purposes shall be the transfer and payment office of the Trustee
and the Trustee shall be the agent of the Company in such Borough 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 thereof. In case the Company shall at any time fail to maintain any
such office or agency, or shall fail to give notice to the Trustee of any
change in the location thereof, presentation and demand may be made and
notice may be served in respect of the Debt Securities or of this Indenture
at said office of the Trustee.
(b) In addition to the office or agency maintained by the Company
pursuant to Section 5.02 (a), the Company may from time to time designate
one or more other offices or agencies where the Debt Securities may be
<PAGE>
presented for payment and presented for registration of transfer and for
exchange in the manner provided in this Indenture, and the Company may from
time to time rescind such designations, as the Company may deem desirable
or expedient; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain such
office and agency in the Borough of Manhattan, The City of New York, for
the purposes above mentioned. The Company will give to the Trustee prompt
written notice of (i) any such designation or recision thereof, and (ii)
the location of any such office or agency outside the Borough of Manhattan,
The City of New York and of any change of location thereof.
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 8.10, a Trustee,
so that there shall at all times be a Trustee hereunder.
SECTION 5.04. Provisions as to Paying Agent. (a) If the Company shall
appoint a paying agent for any series of Debt Securities other than the
Trustee, it will cause such paying agent 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 5.04,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of and premium, if any, or interest
on the Debt Securities of such series (whether such sums have
been paid to it by the Company or by any other obligor on any
series of Debt Securities) in trust for the benefit of the
Holders of such Debt Securities;
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on any series of Debt
Securities) to make any payment of the principal of and premium,
if any, or interest on the Debt Securities of such series when
the same shall be due and payable; and
(3) that it will, at any time during the continuance of any
such failure, upon the written request of the Trustee, deliver to
the Trustee all sums so held in trust by it.
(b) If the Company shall act as its own paying agent, it will, prior
to each due date of the principal of and premium, if any, or interest on
Debt Securities of any series, set aside, segregate and hold in trust for
the benefit of the Holders of such Debt Securities a sum sufficient to pay
such principal and premium, if any, or interest so becoming due and will
notify the Trustee of any failure to take such action and of any failure by
the Company (or by any other obligor on such series of Debt Securities) to
make any payment of the principal of and premium, if any, or interest on
the Debt Securities when the same shall become due and payable.
(c) Anything in this Section 5.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to any or all series of Debt
Securities then Outstanding, 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 5.04, such sums to be held by the
Trustee upon the trusts herein contained.
(d) Anything in this Section 5.04 to the contrary notwithstanding, the
agreement to hold sums in trust provided in this Section 5.04 is subject to
Section 13.04.
(e) Whenever the Company shall have one or more paying agents, it
will, prior to each due date of the principal of and premium, if any, and
on or prior to each due date of interest on any series of Debt Securities,
deposit with a paying agent a sum sufficient to pay the principal and
premium, if any, or interest, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium, if any,
or interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
SECTION 5.05. Restriction on Creation of Secured Debt. So long as the
Debt Securities of any series remain Outstanding, the Company will not at
any time create, incur, assume or guarantee, and will not cause or permit a
Restricted Subsidiary to create, incur, assume or guarantee, any Secured
Debt, and the Company will not at any time create, and will not cause or
permit a Restricted Subsidiary to create, any Security Interest securing
any indebtedness existing on the date hereof which would constitute Secured
Debt if it were secured by a Security Interest in a Principal Facility,
without first making effective provision (and the Company covenants that in
such case it will first make or cause to be made effective provision)
whereby the Debt Securities of each series then Outstanding and any other
indebtedness of or guaranteed by the Company or such Restricted Subsidiary
then entitled thereto, subject to applicable priorities of payment, shall
be secured by the Security Interest securing such Secured Debt equally and
ratably with any and all other obligations and indebtedness thereby
secured, so long as any such other obligations and indebtedness shall be so
secured, provided, however, that the foregoing covenants shall not be
applicable to Secured Debt secured solely by one or more of the following
Security Interests:
(a) (i) Any Security Interest upon any property hereafter
acquired, constructed, developed or improved by the Company or a
Restricted Subsidiary and created prior to or contemporaneously
with, or within 120 days after, (1) in the case of the
acquisition of property which is a parcel of real property other
than developed mining property, a manufacturing plant, a
warehouse or an office building, the completion of such
acquisition and (2) in the case of the acquisition, construction,
development or improvement of any other Principal Facility, the
later to occur of such acquisition, construction, development or
improvement and commencement of operation, use or commercial
production (exclusive of test and start-up periods) of the
property which was acquired, constructed, developed or improved,
which Security Interest secures or provides for the payment of
all or any part of the acquisition cost of such property or the
cost of construction, development or improvement thereof, as the
case may be; or (ii) the acquisition by the Company or a
Restricted Subsidiary of property subject to any Security
Interest upon such property existing at the time of the
acquisition thereof, which Security Interest secures obligations
assumed by the Company or a Restricted Subsidiary; or (iii) any
conditional sales agreement or other title retention agreement
with respect to any property acquired by the Company or a
Restricted Subsidiary; or (iv) any Security Interest existing on
the property or on the outstanding shares or indebtedness of a
corporation or firm at the time such corporation or firm shall
become a Restricted Subsidiary or is merged into or consolidated
with the Company or a Restricted Subsidiary or at the time of a
sale, lease or other disposition of the properties of a
corporation or firm as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary; provided in
each case that any such Security Interest described in clauses
(ii), (iii) or (iv) does not attach to or affect property owned
by the Company or such Restricted Subsidiary prior to the
creation thereof; or
(b) Any Security Interest to secure indebtedness of a
Restricted Subsidiary to the Company or to another Restricted
Subsidiary; or
(c) Mechanics', materialmen's, carriers' or other like liens
arising in the ordinary course of business (including
construction of facilities) in respect of obligations which are
not due or which are being contested in good faith; or
(d) Any Security Interest arising by reason of deposits
with, or the giving of any form of security to, any governmental
agency or any body created or approved by law or governmental
regulations, which is required by law or governmental regulation
as a condition to the transaction of any business, or the
exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or
governmental charges or levies not yet delinquent, or the
Security Interests for taxes, assessments or governmental charges
or levies already delinquent, but the validity of which is being
contested in good faith; or
(f) Security Interests (including judgment liens) arising in
connection with legal proceedings so long as such proceedings are
being contested in good faith and, in the case of judgment liens,
execution thereon is stayed; or
(g) Landlords' liens on fixtures located on premises leased
by the Company or a Restricted Subsidiary in the ordinary course
of business; or
(h) Security Interests arising in connection with contracts
and subcontracts with or made at the request of Canada, or any
province thereof, the United States of America, or any state
thereof, or any department, agency or instrumentality of Canada
or the United States; or
(i) Security Interests in property of the Company or
Restricted Subsidiary to secure partial, progress, advance or
other payments of any indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of
construction, development, or substantial repair, alteration or
improvement of the property subject to such Security Interests if
the commitment for the financing is obtained not later than one
year after the later of the completion of or the placing into
operation (exclusive of test and start-up periods) of such
constructed, developed, repaired, altered or improved property;
or (j) Any Security Interest in favor of Canada, or any
province thereof, the United States of America, or any state,
county or local government, or agency of Canada or the United
States, or any holders of bonds or other securities thereof
issued, in connection with the financing of the cost of
acquiring, constructing or improving property of the Company or
any Restricted Subsidiary (including, without limitation, any
such property designed primarily for the purpose of pollution
control), and any transfers of title to any such property and any
related property or Security Interest in any such property and
related property, in favor of such government or governmental
agency or any such security holders in connection with the
acquisition, construction, improvement, attachment or removal of
such property; provided that such transfer of title and the lien
of any such Security Interest does not apply to any Principal
Facility now or hereafter owned by the Company or any Restricted
Subsidiary; or
(k) Any extension, renewal or refunding (or successive
extensions, renewals or refundings) in whole or in part of any
Secured Debt secured by any Security Interest referred to in the
foregoing subparagraphs (a) through (j), inclusive, provided that
the principal amount of such Secured Debt secured thereby shall
not exceed the principal amount outstanding at the time of such
extension, renewal or refunding, and that the Security Interest
securing such Secured Debt shall be limited to the property which
secured the Secured Debt so extended, renewed or refunded and
additions to such property.
Notwithstanding the foregoing provisions of this Section 5.05, the
Company and any one or more Restricted Subsidiaries may issue, incur,
assume or guarantee Secured Debt (not including Secured Debt permitted to
be secured under subparagraphs (a) through (k), inclusive , above) in an
aggregate amount which, together with all other Secured Debt (not including
Secured Debt permitted to be secured under subparagraphs (a) through (k),
inclusive, above) of the Company and its Restricted Subsidiaries which is
issued, incurred, assumed or guaranteed after the date hereof and the
aggregate value of the Sale and Leaseback Transactions entered into after
the date hereof (not including Sale and Leaseback Transactions referred to
in clause (b) of Section 5.06), does not at the time exceed 10% of
Consolidated Net Tangible Assets. The term "value" shall mean, with
respect to a Sale and Leaseback Transaction, as of any particular time, the
amount equal to the net proceeds of the property sold or transferred or to
be sold or to be transferred pursuant to such Sale and Leaseback
Transaction divided first by the number of full years of the term of the
lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
SECTION 5.06. Restriction on Sale and Leaseback Transactions. So long
as the Debt Securities of any series remain Outstanding, the Company will
not , and will not permit any Restricted Subsidiary to, enter into any Sale
and Leaseback Transaction, unless (a) the Company or such Restricted
Subsidiary would be entitled to incur Secured Debt only by reason of the
last paragraph of Section 5.05 equal in amount to the net proceeds of the
property sold or transferred or to be sold or to be transferred pursuant to
such Sale and Leaseback Transaction and secured by a Security Interest on
the property to be leased without equally and ratably securing the Debt
Securities of any series as provided in said Section, or (b) the Company or
a Restricted Subsidiary shall apply, within one year after the effective
date of such sale or transfer, or shall have committed within one year
after such effective date to apply, an amount equal to such new proceeds to
(i) the acquisition, construction, development or improvement of
properties, facilities or equipment which are, or, upon such acquisition,
construction, development or improvement will be, a Principal Facility or
Facilities or a part thereof or (ii) the redemption of Debt Securities in
accordance with the provisions of Article Four and at the redemption price
referred to in Section 4.01 applicable at the time of such redemption, or
to the repayment of Senior Funded Debt of the Company or of any Restricted
Subsidiary (other than Senior Funded Debt owed to any Restricted
Subsidiary), or in part to such acquisition, construction, development or
improvement and in part to such redemption and/or repayment; provided that,
in lieu of applying an amount equal to such net proceeds to such
redemption, the Company may, within one year after such sale or transfer,
deliver to the Trustee Debt Securities (other than Debt Securities made the
basis of a reduction in a mandatory sinking fund payment pursuant to
Section 4.04) for cancellation and thereby reduce the amount to be applied
to the redemption of Debt Securities pursuant to clause (ii) above by an
amount equivalent to the aggregate principal amount of Debt Securities so
delivered. Redemption of Debt Securities pursuant to this Section 5.06
shall not be used as credits against mandatory sinking fund payments.
SECTION 5.07. Restriction on Transfer of Principal Facility to
Unrestricted Subsidiaries. So long as the Debt Securities of any series
remain Outstanding, the Company will not itself, and will not cause, suffer
or permit any Restricted Subsidiary to, transfer (whether by merger,
consolidation or otherwise) any Principal Facility to any Unrestricted
Subsidiary, unless it shall apply, within one year after the effective date
of such transaction, or shall have committed within one year after such
effective date to apply, an amount equal to the fair value of such
Principal Facility at the time of such transfer, as determined by the Board
of Directors, to (a) the acquisition, construction, development or
improvement of properties, facilities, or equipment which are, or upon such
acquisition, construction, development or improvement will be, a Principal
Facility or Facilities or a part thereof or (b) the redemption of Debt
Securities of any series in accordance with the provisions of Article Four
and at the redemption price referred to in Section 4.01 applicable at the
time of such redemption, or to the repayment of other Senior Funded Debt of
the Company or of any Restricted Subsidiary (other than any Senior Funded
Debt owed to any Restricted Subsidiary), or in part to such acquisition,
construction, development or improvement and in part to such redemption
and/or repayment; provided that, in lieu of applying an amount equivalent
to all or any part of such fair value to such redemption, the Company may,
within one year after such transfer, deliver to the Trustee Debt Securities
(other than Debt Securities made the basis of a reduction in a mandatory
sinking fund payment pursuant to Section 4.04) for cancellation and thereby
reduce the amount to be applied to the redemption of the Debt Securities of
that series pursuant to clause (b) above by an amount equivalent to the
aggregate principal amount of the Debt Securities so delivered. Redemption
of Debt Securities pursuant to this Section 5.07 shall not be used as
credits against mandatory sinking fund payments.
SECTION 5.08. Certificate to Trustee. So long as the Debt Securities
of any series remain Outstanding, the Company will deliver to the Trustee
on or before November 15 in each year an Officers' Certificate stating that
in the course of the performance by the signers of their duties as officers
of the Company, they would normally have knowledge of any default by the
Company in performance of any covenants or agreements contained herein,
stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the
nature thereof.
SECTION 5.09. Waivers of Covenants. Anything in this Indenture to
the contrary notwithstanding, the Company may fail or omit , in respect of
any series of Debt Securities, and in any particular instance, to comply
with a covenant, agreement or condition contained in Sections 5.02 and 5.04
(other than in 5.04 (a) (1) and (2)) to 5.08, inclusive, if the Company
shall have obtained and filed with the Trustee if before or after the time
for such compliance the consent in writing of the Holders of more than 50%
in aggregate principal amount of the Debt Securities of the series affected
by such waiver at the time Outstanding, either waiving such compliance in
such instance or generally waiving compliance with such covenant or
condition, but no such waiver shall extend to or affect any obligation not
expressly waived nor impair any right consequent thereon and, until such
waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
ARTICLE SIX.
Holders' Lists and Reports by the Company
and the Trustee.
SECTION 6.01. Holders' Lists. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee, not more than 15
days after each Regular Record Date with respect to the Debt Securities of
any series, and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list in
such form as the Trustee may reasonably require of the names and addresses
of the Holders of Debt Securities of such series as of a date not more than
15 days prior to the time such information is furnished; provided, however,
that no such list with respect to any particular series of Debt Securities
need be furnished at any such time if the Trustee is in possession thereof
by reason of its acting as the Debt Security registrar for such series
designated under Section 3.06 or otherwise.
SECTION 6.02. Preservation and Disclosure of Lists. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of Debt Securities
contained in the most recent list furnished to it as provided in Section
6.01 or received by the Trustee in the capacity of the Debt Security
registrar (if so acting) under Section 3.06. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list
so furnished.
(b) In case three or more Holders of Debt Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such applicant has
owned a Debt Security of such series for a period of at least six months
preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders of Debt Securities
or with holders of all Debt Securities with respect to their rights under
this Indenture or under such Debt Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
<PAGE>
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 6.02, or
(2) inform such applicants as to the approximate number of
Holders of Debt Securities of such series or of all Debt
Securities, as the case may be, whose names and addresses appear
in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section
6.02, and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Debt Security of such series or all
Holders of Debt Securities, as the case may be, whose name and address
appears in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 6.02 a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender,
the Trustee shall mail to such applicants and file with the Securities and
Exchange Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Debt
Securities of such series or of all Debt Securities, as the case may be, or
would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If said Commission, after opportunity
for a hearing upon the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of such objections, or
if, after the entry of an order sustaining one or more of such objections,
said Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of the Debt Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent nor any Debt Security
registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of the Debt
Securities in accordance with the provisions of subsection (b) of this
Section 6.02, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under said subsection (b).
SECTION 6.03. Reports by the Company. (a) So long as the Debt
Securities of any series are Outstanding, the Company covenants and agrees
to file with the Trustee, within 15 days after the Company is required to
file the same with the Securities and Exchange Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said Commission may from
time to time by rules and regulations prescribe) which the Company may be
required to file with said Commission pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and said Commission, in
accordance with rules and regulations prescribed from time to time by said
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and register on a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) So long as the Debt Securities of any series are Outstanding, the
Company covenants and agrees to file with the Trustee and the Securities
and Exchange Commission, in accordance with the Trust Indenture Act and the
rules and regulations prescribed from time to time by said Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by the Trust Indenture Act
and such rules and regulations.
(c) So long as the Debt Securities of any series are Outstanding, the
Company covenants and agrees to transmit by mail to all Holders of Debt
Securities, as the names and addresses of such Holders appear upon the Debt
Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this
Section 6.03 as may be required by rules and regulations prescribed form
time to time by the Securities and Exchange Commission.
SECTION 6.04. Reports by the Trustee. On or before the first date for
the regular payment of semiannual interest on the Debt Securities next
succeeding May 15 in each year, so long as the Trust Indenture Act requires
and the Debt Securities of any series are Outstanding, the Trustee shall
transmit to the Holders, the Company and the Securities and Exchange
Commission, in accordance with the Trust Indenture Act and the rules and
regulations prescribed from time to time by said Commission, such
information, documents and reports required to be so transmitted by the
Trustee as may be required from time to time by the Trust Indenture Act and
such rules and regulations. ARTICLE SEVEN.
Remedies of the Trustee and Holders
on Event of Default.
SECTION 7.01. Events of Default. Event of Default, with respect to
any series of Debt Securities, wherever used herein, means any one of the
following events (whatsoever the reason for such Even of Default and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), unless such
event is either inapplicable to a particular series or it is specifically
deleted or modified in the supplemental indenture under which such series
of Debt Securities is issued or in the form of Debt Security for such
series:
(a) default in the payment of any instalment of interest
upon any Debt 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 and premium,
if any, on any Debt Security of such series as and when the same
shall become due and payable either at maturity, upon redemption,
by declaration or otherwise; or
(c) default in the payment or satisfaction of any sinking
fund payment or analogous obligation, with respect to the Debt
Securities of such series as and when the same shall become due
and payable by the terms of the Debt Securities of such series;
or
(d) failure on the part of the Company duly to observe or
perform any of the covenants or agreements on the part of the
Company in respect of the Debt Securities of such series in this
Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section
specifically dealt with) continued for a period of 60 days after
the date on which written notice of such failure, specifying such
failure and requiring the same to be remedied, shall have been
given to the Company by the Trustee, by registered mail, or to
the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Debt Securities of
such series; or
(e) an event of default with respect to any other series of
Debt Securities issued or hereafter issued pursuant to this
Indenture or if default shall be made (and shall not have been
cured or waived) in the payment of principal of or interest on
any other obligation for borrowed money of the Company (including
default by the Company on any guaranty of an obligation for
borrowed money of a Restricted Subsidiary) beyond any period of
grace with respect thereto if (i) the aggregate principal amount
(or, in the case of Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms
of such indebtedness as due and payable upon acceleration) of any
such obligation in respect of which principal or interest is and
remains in default is in excess of $10,000,000 and (ii) the
default in such payment is not being contested by the Company in
good faith and by appropriate proceedings; provided, however,
that subject to the provisions of Section 7.08 and Section 8.01
the Trustee shall not be charged with knowledge of any such
default unless written notice thereof shall have been given to
the Trustee by the Company, by the Holders or an agent of the
Holders of any such indebtedness, by the trustee then acting
under any indenture or other instrument under which such default
shall have occurred, or by the Holders of not less than 25% in
aggregate principal amount of such series of Debt Securities at
the time Outstanding; or
(f) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization of the Company under the Federal bankruptcy laws
or any other similar applicable Federal or state law, and such
decree or order shall have continued undischarged and unstayed
for a period of 90 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee or other similar official in
bankruptcy or insolvency of the Company or of all or
substantially all of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and such
decree or order shall have continued undischarged and unstayed
for a period of 90 days; or
(g) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing
of a bankruptcy proceedings against it, or shall file a petition
or answer or consent seeking an arrangement or a reorganization
under the Federal bankruptcy laws or any other similar applicable
Federal or state law, or shall consent to the filing of any such
petition, or shall consent to the appointment of a receiver or
liquidator or trustee or assignee or other similar official in
bankruptcy or insolvency of it or of all or substantially all of
its property, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its
debts generally as they become due; or
(h) any other Event of Default provided in the supplemental
indenture under which such series of Debt Securities is issued or
in the form of Debt Security for such series;
then and in each and every such case, so long as such Event of Default with
respect to any series of Debt Securities for which there are Debt
Securities Outstanding occurs and is continuing and shall not have been
remedied or waived to the extent permitted by the terms of this Indenture,
unless the principal of all of the Debt Securities of such series shall
have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Debt
Securities of such series, by notice in writing to the Company (and to the
Trustee if given by Holders), may declare the principal (or, if the Debt
Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all the Debt Securities of such series and the interest accrued
thereon to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in
this Indenture or in the Debt Securities of 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 Debt Securities
of such series shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all of the Debt Securities and the principal of and
premium, if any, on any and all Debt Securities of such series which shall
have become due otherwise than by such declaration (with interest on
overdue installments of interest to the extent that payment of such
interest is enforceable under applicable law and on such principal and
premium, if any, at the rate borne by the Debt Securities of such series or
as otherwise provided in the form of Debt Security for such series, to the
date of such payment or deposit) and the expenses of the Trustee (subject
to Section 8.06), and any and all defaults under this Indenture, other than
the nonpayment of principal of and accrued interest on Debt Securities of
such series which shall have become due by such declaration, shall have
been cured or shall have been waived in accordance with Section 7.07 or
provision deemed by the Trustee to be adequate shall have been made
therefor -- then and in every such case the Holders of at least a majority
in aggregate principal amount of the Debt Securities of such series then
Outstanding by written notice to the Company and to the Trustee, may
rescind and annul such declaration and its consequences; but no such
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 and annulment or for
any other reason or shall have been determined adversely to the Trustee,
then and in every such case the Company, the Trustee and the Holders shall
be restored respectively to their several positions and rights hereunder,
and all rights, remedies and powers of the Company, the Trustee and the
Holders shall continue as though no such proceeding had been taken.
SECTION 7.02. Payment of Debt Securities Upon Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the payment
of any installment of interest upon any Debt Security 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 (b) in case default shall be made in
the payment of the principal of and premium, if any, on any Debt Security
of any series as and when the same shall have become due and payable,
whether at maturity of the Debt Security or upon redemption or by
declaration or otherwise or (c) in case default shall be made in the making
or satisfaction of any sinking fund payment or analogous obligation with
respect to the Debt Securities of any series when the same becomes due by
the terms of the Debt Securities of any series -- then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the
Holders (or Holders of Debt Securities of any such series in the case of
clause (c) above), the whole amount that then shall have become due and
payable on any such Debt Security (or Debt Securities of any such series in
the case of clause (3) above) 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 the overdue installments
of interest at the rate borne by the Debt Securities of such series or as
otherwise provided in the form of Debt Security of such series; and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including a reasonable compensation to
the Trustee, its agents, attorneys and counsel, and any expenses or
liabilities incurred and advances made by the Trustee, except compensation
or advances arising, or expenses or liabilities incurred, as a result of
the Trustee's 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 actions or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and
may enforce any such judgment or final decree against the Company or any
other obligor on such Debt Securities and collect, in the manner provided
by law out of the property of the Company or any other obligor on such Debt
Securities wherever situated, the moneys adjudged or decreed to be payable.
If any Event of Default with respect to any series of Debt Securities
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Debt
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debt
Securities of any series under the Federal bankruptcy laws or any other
applicable law, or in case a receiver or trustee shall have been appointed
for the property of the Company or such other obligor, or in the case of
any other similar judicial proceedings relative to the Company or other
obligor upon the Debt Securities of any series, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Debt Securities of such 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 7.02, shall be entitled and empowered by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and interest owing and unpaid in
respect of the Debt Securities of such series, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
and of the Holders of the Debt Securities of such series allowed in such
judicial proceedings relative to the Company or any other obligor on such
Debt Securities, its or their creditors, or its or their property, 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 its
charges and expenses; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the Holders of the Debt
Securities of such series 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 such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred and
advances made by the Trustee except compensation or advances arising, or
expenses or liabilities incurred, as a result of the Trustee's negligence
or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Debt Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder (except, as
aforesaid, for the election of a trustee in bankruptcy or other Person
performing similar functions) in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities of any series, may be enforced by the
Trustee without the possession of any of such Debt Securities, or the
production thereof on any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall be for the ratable benefit of the Holders of the Debt Securities of
such series in respect of which such judgment has been recovered.
SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 7.02 shall be applied in the
order following, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the Debt Securities of
<PAGE>
such series, and stamping thereon 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 other expenses and liabilities incurred,
and all advances made, by the Trustee except compensation or
advances arising, or expenses or liabilities incurred, as a
result of its negligence or bad faith, and any other amounts
owing the Trustee under Section 8.06;
SECOND: In case the principal of the Debt Securities of
such series shall not have become due and be unpaid, to the
payment of interest on such Debt Securities, in the order of the
maturity of the installments of such interest, with interest (to
the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the rate borne by
such Debt Securities, such payments to be made ratably to the
Persons entitled thereto;
THIRD: In case the principal of the Debt Securities of such
series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon such Debt
Securities for principal and premium, if any, and interest, with
interest on the overdue principal and premium, if any, and (to
the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the rate borne by such
Debt Securities; and in case such moneys shall be insufficient to
pay in full the whole amounts so due and unpaid upon such Debt
Securities, 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 Debt Security of such
series over any other such Debt Security, ratably to the
aggregate of such principal and premium, if any, and accrued and
unpaid interest;
FOURTH: To the payment of any surplus then remaining to the
Company, its successors or assigns, or to whomsoever may be
lawfully entitled to receive the same.
SECTION 7.04. Proceedings by Holders. No Holder of any Debt Security
of any series shall have any right by virtue of or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law or in bankruptcy or otherwise upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless such Holder previously shall have
given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less
than 25% in aggregate principal amount of the Debt Securities of such
series then Outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding (and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 7.07), it being understood and intended, and being
expressly covenanted by the taker and Holder of every Debt Security of
every series with every other taker and Holder and the Trustee, that no one
or more Holders of Debt Securities shall have any right in any manner
whatever by virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder of such Debt
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 Debt Securities.
SECTION 7.05. Proceedings by Trustee. 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 by suit in equity or by action at law or by
proceeding 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 7.06. Remedies Cumulative and Continuing. All powers and
remedies given by this Article Seven 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 7.04, every power and
remedy given by this Article Seven or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders. The Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series shall have the
right to direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee; provided, however, that (subject to the
provisions of Section 8.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine upon advice of
counsel that the action or proceeding so directed may not lawfully be taken
or would be materially and unjustly prejudicial to the rights of Holders
not joining in such direction or 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 Responsible Officers shall determine that the
action or proceeding so directed would involve the Trustee in personal
liability. The Trustee may take any other action deemed proper by the
Trustee not inconsistent with such direction. The Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of any series
may on behalf of the Holders of all the Debt Securities of such series
waive any past default or Event of Default hereunder and its consequences
except a default in the payment of principal of or premium, if any, or
interest on such Debt Securities, or a default in the making of any sinking
fund payment with respect to such Debt Securities. Upon any such waiver
the Company, the Trustee and the Holders of such Debt Securities shall be
restored to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or
Event of Default shall have been waived as permitted by this Section 7.07,
said default or Event of Default shall for all purposes of the Debt
Securities and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 7.08. Notice of Defaults. The Trustee shall, within 90 days
after the occurrence of a default, mail to all Holders of Debt Securities
of any series, as the names and addresses of such Holders appear upon the
Debt Security Register, notice of all defaults known to the Trustee with
respect to such Debt Securities, unless such defaults shall have been cured
or waived before the giving of such notice (the term "defaults" for the
purpose of this Section 7.08 being hereby defined to be the events
specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section
7.01, not including periods of grace, if any, provided for therein and
irrespective of the 60-day period after the giving of the written notice
specified in said clause (d) but in the case of any default of the
character specified in said clause (d) no such notice to Holders shall be
given until at least 60 days after the giving of written notice thereof to
the Company pursuant to said clause (d)); provided, however, that except in
the case of default in the payment of the principal of or premium, if any,
or interest on any of the Debt Securities 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 interests of
the Holders.
SECTION 7.09. Undertaking to Pay Costs. The parties to this Indenture
agree, and each Holder of any Debt Security of any series by this
acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, 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 7.09 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 10% in principal
amount of the Debt Securities Outstanding 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 Debt Security on or
after the due date expressed in such Debt Security.
SECTION 7.10. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Debt Security shall have the rights, which are
absolute and unconditional, to receive payment of the principal of,
premium, if any, and (subject to Section 3.08) interest on such Debt
Security on the respective Stated Maturities expressed in such Debt
Security (or in the case of redemption or repayment, on the date for
redemption or repayment, as the case may be) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
ARTICLE EIGHT.
Concerning the Trustee.
SECTION 8.01. Duties and Responsibilities of Trustee. The Trustee,
prior to the occurrence of an Event of Default with respect to any series
of Debt Securities and after the curing of all Events of Default with
respect to such Debt Securities which may have occurred, 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 any series of
Debt 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, 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 any series of Debt Securities and after the curing or
waiving of all Events of Default with respect to such Debt
Securities and the Holders thereof which may have occurred,
(1) the duties and obligations of the Trustee with respect
to such Debt Securities and the Holders thereof 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 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 any error of
judgment made in good faith by a Responsible Officer or Officers
of the Trustee, 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 or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in principal amount of the Debt Securities Outstanding
of any series, or such lesser principal amount as permitted in
this Indenture, determined as provided in Section 9.04, relating
to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with
respect to Debt Securities of such series.
None of the provisions of this Indenture shall be construed as
requiring the Trustee to expend or risk its own funds or otherwise to incur
any personal financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there
shall be reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 8.02. Reliance on Documents, Opinions, etc. Subject to the
provisions of Section 8.01,
(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, 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 an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and 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 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 Debt Securities of any series and after the curing
or waiving of all Events of Default with respect to such Debt
Securities, 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, consent, order, approval, bond, debenture, note, or
other paper or document, unless requested in writing to do so by
the Holders of not less than a majority in principal amount of
such Debt Securities then Outstanding; provided, however, that
the reasonable expenses 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 provided further, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
so proceeding;
(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
liable or responsible for any misconduct, bad faith or negligence
on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be deemed to have knowledge of any
default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or Holders of greater than
50% of the outstanding principal amount of Debt Securities of any
series shall have notified the Trustee thereof.
SECTION 8.03. No Responsibility for Recitals, etc. The recitals
contained herein and in the Debt Securities (except in the Trustee's
certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series. 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 Debt
Securities or the proceeds of any Debt Securities authenticated and
delivered by the Trustee in conformity with the provisions of this
Indenture.
SECTION 8.04. Trustee and Agents May Own Debt Securities. The Trustee
or any agent of the Trustee or the Company under this Indenture, in its
individual or any other capacity, may become the owner or pledgee of Debt
Securities of any series with the same rights it would have if it were not
Trustee or such agent.
SECTION 8.05. Moneys to be Held in Trust. Subject to the provisions
of Section 13.04, 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. Neither the Trustee nor any paying agent shall
be under any liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay thereon. So long as no
Event of Default with respect to the Debt 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 the written order of the Company,
signed by its President, any Vice President, its Treasurer or an Assistant
Treasurer.
SECTION 8.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation (which shall not be
<PAGE>
limited by any provision of law in regard to the compensation of a trustee
of an express trust), and 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 counsel and all persons not regularly in its employ
and any amounts paid by the Trustee to any Authenticating Agent pursuant to
Section 8.14) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. 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
and arising out of or in connection with the acceptance or administration
of this trust, or the performance of its duties hereunder, including the
current payment of all costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the Company under
this Section 8.06 to compensate the trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Debt Securities upon all property
and funds held or collected by the Trustee as such, except funds held in
trust for the benefit of the Holders of particular Debt Securities.
SECTION 8.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 8.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such Certificate, in the absence of negligence or bad
faith on the part of the trustee, shall be full warrant to the Trustee for
any action taken or omitted by it under the provisions of this indenture
upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. If the Trustee has or
shall acquire any conflicting interest, as defined in the Trust Indenture
Act, then the Trustee shall either eliminate such conflicting interest, or
resign, in the manner and with the effect specified in the Trust Indenture
Act. SECTION 8.09. Eligibility of Trustee. There shall be at all times be
a Trustee with respect to each series of Debt Securities hereunder which
shall be a corporation organized and doing business under the laws of the
United States or any state or territory thereof or of the District of
Columbia authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal, state, territorial, or District of
Columbia authority and having its principal office and place of business in
The City of New York or the City of Chicago, Illinois, if there be such a
corporation having its principal office and place of business in said City
and willing to act as Trustee hereunder. 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 8.09, 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. No obligor upon
the Debt Securities, or person directly or indirectly controlling,
controlled by or under common control with such obligor, shall serve as
Trustee hereunder. In case at any time the Trustee with respect to any
series of Debt Securities shall cease to be eligible in accordance with the
provisions of this Section 8.09, such Trustee shall resign immediately in
the manner and with the effect specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may
at any time resign with respect to any series of Debt Securities by giving
written notice by first class mail of such resignation to the Company and
to the Holders of such series of Debt Securities at their addresses as they
shall appear on the Debt Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee with
respect to such series 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 such series shall have been so
appointed and have accepted appointment within 60 days after the mailing of
such notice of resignation to the Holders, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder of such series of Debt Securities who has
been a bona fide Holder of a Debt Security or Debt Securities of such
series for at least six months may, subject to the provisions of Section
7.09, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, appoint such successor trustee.
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of
Section 8.08 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt Security or Debt
Securities of such series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.09 and shall fail to resign after written
request therefor by the Company or by any such Holder of a note of
such series, or
(3) the Trustee shall become incapable of acting with respect to
any series of Debt Securities, 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
such series and 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 Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 7.09, any
Holder who has been a bona fide Holder of a Debt Security or Debt
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 with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove such
Trustee and appoint such successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may at any time remove the
Trustee with respect to such series and nominate a successor Trustee which
shall be deemed appointed as successor Trustee unless within ten days after
such nomination the Company objects thereto, in which case the Trustee so
removed or any Holder of a Debt Security or Debt Securities of such series,
upon the terms and conditions and otherwise as in subsection (a) of this
Section 8.10 provided, may petition any court of competent jurisdiction for
an appointment of a successor Trustee with respect to such series.
(d) Any resignation or removal of the Trustee with respect to all or
any series of Debt Securities and any appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.10 shall become
effective upon acceptance of appointment by the successor Trustee as
provided in Section 8.11.
SECTION 8.11. Acceptance by Successor Trustee. Any successor Trustee
appointed as provided in Section 8.10 shall execute, acknowledge and
deliver to the Company and to its predecessor Trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor Trustee shall become effective with respect to
all or any series as to which it is resigning as Trustee, and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder with respect to all or any such series, with like
effect as if originally named as Trustee herein with respect to all or any
such series; nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 8.06, execute and
deliver an instrument transferring to such successor Trustee all the rights
and powers of the Trustee with respect to all or any such series so ceasing
to act. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such Trustee with respect to all
or any series as to which it is resigning as Trustee, to secure any amounts
then due it pursuant to the provisions of Section 8.06.
No successor Trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor Trustee
shall be qualified under the provisions of Section 8.08 and eligible under
the provisions of Section 8.09.
Upon acceptance of appointment by a successor Trustee with respect to
all or any series of Debt Securities as provided in this Section 8.11, the
Company shall mail notice of the succession of such Trustee hereunder to
the Holders of Debt Securities of such series at their addresses as they
shall appear on the Debt Security Register. If the Company fails to mail
such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Company.
In case the appointment hereunder of a successor Trustee with respect
to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt Securities of any
series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and 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.
SECTION 8.12. Succession by Merger, etc. Subject to Sections 8.08 and
8.09, 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 without the
execution or filing of any paper or any further act on the part of any of
the parties hereto.
In case at the time any successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Debt Securities shall have been
authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee, and
deliver such Debt Securities so authenticated; and in case at that time any
of the Debt Securities shall not have been authenticated, any successor to
the Trustee may authenticate such Debt Securities either in the name of
such successor Trustee or, if such successor Trustee is a successor by
merger, conversion or consolidation, the name of any predecessor hereunder;
and in all such cases such certificate shall have the full force which it
is anywhere in the Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION 8.13. Limitation on Rights of Trustee as a Creditor. (a)
Subject to the provisions of subsection (b) of this Section 8.13, if the
Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company or of any other obligor on the Debt
Securities within three months prior to a default, as defined in subsection
(c) of this Section 8.13, or subsequent to such a default, then, unless and
until such default shall be cured, the Trustee shall set apart and hold in
a special account for the benefit of the Trustee individually, the Holders
of the Debt Securities, and the holders of other indenture securities (as
defined in subsection (c) of this Section 8.13):
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection (a), or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-
month period, or an amount equal to the proceeds of any such property,
if disposed of, subject, however, to the rights, if any, of the
Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a Third Person, and (iii) distributions made in
cash, securities, or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for
reorganizations pursuant to the Federal bankruptcy laws or applicable
state law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section
8.13, would occur, within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in such paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair
value of the property, released, have the same status as the property
released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any pre-existing claim of the Trustee as
such creditor, such claim shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of
other indenture securities realize, as a result of payments from such
special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal bankruptcy laws or applicable state law, the same
percentage of their respective claims, calculated before crediting to the
claim of the Trustee anything on account of the receipt by it from the
Company of the funds and property in such special account and before
crediting to the respective claims of the Trustee, the Holders, and the
holders of other indenture securities dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal bankruptcy laws or applicable state law, but after
crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in
this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws or applicable state law, whether such distribution is made
in cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim.
The court in which such bankruptcy, receivership, or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between
the Trustee, the Holders, and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property
held in such special account and the proceeds thereof, or (ii) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee, the Holders and the holders of
other indenture securities with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee who has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred. If
any Trustee has resigned or been removed prior to the beginning of such
three-month period, it shall be subject to the provisions of this
subsection (a) if and only if the following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section 8.13 a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the Holders
at the time and in the manner provided in Section 6.04;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
<PAGE>
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section 8.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section 8.13.
(c) As used in this Section 8:13:
(1) The term "default" shall mean any failure to make a payment
in full of the principal of, premium, if any, or interest upon any of
the Debt Securities or upon the other indenture securities when and as
such principal, premium, if any, or interest becomes due and payable;
(2) The term "other indenture securities" shall mean securities
upon which the Company is an obligor (as defined in the Trust
Indenture Act) outstanding under any other indenture (A) under which
the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section 8.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account;
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable upon
demand;
(4) The term "self-liquidating paper" shall mean any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security; provided, however,
that the security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising from
the making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation; and
(5) The term "Company" shall mean any obligor upon the Debt
Securities.
SECTION 8.14. Authenticating Agents. There may be an Authenticating
Agent or Authenticating Agents appointed by the Trustee from time to time
with power to act on its behalf and subject to its direction in the
authentication and delivery of any series of Debt Securities issued upon
exchange, transfer or redemption thereof as fully to all intents and
purposes as though such Authenticating Agent (or Authenticating Agents) had
been expressly authorized to authenticate and deliver such Debt Securities,
and Debt Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as though
authenticated by the Trustee hereunder. For all purposes of this Indenture
(except in the case of original issuance and the issuance of Debt
Securities in replacement of lost, stolen, mutilated or destroyed Debt
Securities), the authentication and delivery of Debt Securities by any
Authenticating Agent pursuant to this Section 8.14 shall be deemed to be
the authentication and delivery of such Debt Securities "by the Trustee",
and whenever this Indenture provides (except in the case of original
issuance and the issuance of Debt Securities in replacement of lost,
stolen, mutilated or destroyed Debt Securities) that "the Trustee shall
authenticate and deliver" Debt Securities or that Debt Securities "shall
have been authenticated and delivered by the Trustee", such authentication
and delivery by any Authenticating Agent shall be deemed to be
authentication and delivery by the Trustee. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the
laws of the United States of America or of any State or Territory or the
District of Columbia, with a combined capital and surplus of at least
$15,000,000 and authorized under such laws to act as an authenticating
agent, duly registered to act as such, if and to the extent required by
applicable law and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of its condition at
least annually pursuant to law or the requirements of such authority, then
for the purposes of this Section 8.14 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. If at any
time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 8.14, or to be duly registered if and to the
extent required by applicable law and regulations, it shall resign
immediately in the manner and with the effect herein specified in this
Section 8.14.
Whenever reference is made in this Indenture to the authentication and
delivery of Debt Securities of any series by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by its Authenticating
Agent appointed with respect to the Debt Securities of such series and a
certificate of authentication executed on behalf of the Trustee by its
Authenticating Agent appointed with respect to the Debt Securities of such
series.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
authenticating agency business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, if such successor
corporation is otherwise eligible under this Section 8.14, without the
execution or filing of any paper or any further act on the part of the
parties hereto or such Authenticating Agent or such successor corporation.
In case at the time such successor to any such agency shall succeed to
such agency any of the Debt Securities shall have been authenticated but
not delivered, any such successor to such Authenticating Agent may adopt
the certificate of authentication of any predecessor Authenticating Agent
and deliver such Debt Securities so authenticated; and in case at that time
any of the Debt Securities shall not have been authenticated, any successor
to any Authenticating Agent may authenticate such Debt Securities either in
the name of any predecessor hereunder or in the name of the successor
Authenticating Agent; and in all cases such certificate shall have the full
force which it has anywhere in the Debt Securities or in this Indenture
provided that the certificate of the predecessor Authenticating Agent shall
have had such force; provided, however, that the right to adopt the
certificate of authentication of any predecessor Authenticating Agent or to
authenticate Debt Securities in the name of any predecessor Authenticating
Agent shall apply only to its successor or successors by merger, conversion
or consolidation.
Any Authenticating Agent may at any time resign as Authenticating
Agent with respect to any series of Debt Securities by giving written
notice of resignation to the Trustee and to the Company. The Trustee may
at any time terminate the agency of any Authenticating Agent with respect
to any series of Debt Securities by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 8.14,
the Trustee may, and shall, upon request of the Company, promptly use its
best efforts to appoint a successor Authenticating Agent.
Upon the appointment, at any time after the original issuance of any
of the Debt Securities, of any successor, additional or new Authenticating
Agent, the Trustee shall give written notice of such appointment to the
Company and shall at the expense of the Company mail notice of such
appointment to all Holders of Debt Securities of such series as the names
and addresses of such Holders appear on the Debt Security Register.
Any successor Authenticating Agent with respect to any series of Debt
Securities upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder, with
like effect as though originally named as an Authenticating Agent herein
with respect to such series. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.14 and
duly registered if and to the extent required under applicable law and
regulations.
Any Authenticating Agent by the acceptance of its appointment with
respect to any series of Debt Securities shall be deemed to have agreed
with the Trustee that: it will perform and carry out the duties of an
Authenticating Agent as herein set forth with respect to such series,
including among other things the duties to authenticate and deliver Debt
Securities when presented to it in connection with exchanges, registrations
of transfer or redemptions thereof; it will keep and maintain, and furnish
to the Trustee from time to time as requested by the Trustee appropriate
records of all transactions carried out by it as Authenticating Agent and
will furnish the Trustee such other information and reports as the Trustee
may reasonably require; it is eligible for appointment as Authenticating
Agent under this Section 8.14 and will notify the Trustee promptly if it
shall cease to be so qualified; and it will indemnify the Trustee against
any loss, liability or expense incurred by the Trustee and will defend any
claim asserted against the Trustee by reason of any acts or failures to act
of the Authenticating Agent with respect to such series but it shall have
no liability for any action taken by it at the specific written direction
of the Trustee.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation and expenses for its services, and the Trustee
shall have no liability for such payments.
The provisions of Sections 8.02(a), (b), (c), (e) and (f), 8.03, 8.04,
8.06 (insofar as it pertains to indemnification), 9.01, 9.02 and 9.03 shall
bind and inure to the benefit of each Authenticating Agent to the same
extent that they bind and inure to the benefit of the Trustee.
ARTICLE NINE.
Concerning the Holders.
SECTION 9.01. Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any series may take any action (including
the making of any demand or request, the giving of any 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 of such
series have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by Holders of such series
in person or by agent or proxy appointed in writing, or (b) by the record
of the Holders of such series voting in favor thereof at any meeting of
such Holders duly called and held in accordance with the provisions of
Article Ten, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of Holders of such series.
SECTION 9.02. Proof of Execution by Holders. Subject to the
provisions of Sections 8.01, 8.02 and 10.05, 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 Debt Securities shall be proved by the Debt Security
Register or by a certificate of the Debt Security registrar with respect to
a series of Debt Securities.
The record of any Holders' meeting shall be proved in the manner
provided in Section 10.06.
SECTION 9.03. Who Are Deemed Absolute Owners. The Company, the
Trustee with respect to a series of Debt Securities, and any agent of the
Trustee or the Company under this Indenture may deem the Person in whose
name such Debt Security shall be registered upon the Debt Security Register
to be, and may treat him as, the absolute owner of such Debt Security
(whether or not such Debt Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon made by anyone other than
the Company, the Trustee or any such agent) for the purpose of receiving
payment of or on account of the principal of and premium, if any, and
interest on such Debt Security and for all other purposes; and neither the
Company nor the Trustee nor any such agent shall be affected by any notice
to the contrary. All such payments so made to any Holder for the time
being or upon his order shall, to the extent of the sum or sums so paid, be
effectual to satisfy and discharge the liability for moneys payable upon
any such Debt Security.
SECTION 9.04. Company-Owned Debt Securities Disregarded. In
determining whether the Holders of the requisite aggregate principal amount
of Debt Securities of any series have concurred in any direction or consent
under this Indenture, Debt Securities of such series which are owned by the
Company or any other obligor on the Debt 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
such Debt Securities shall be disregarded and deemed not to be Outstanding
for the purpose of any such determination; provided, however, that for the
purposes of determining whether the Trustee shall be protected in relying
on any such direction or consent only such Debt Securities which the
Trustee knows are so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding
notwithstanding this Section 9.04 if the pledgee shall establish to the
satisfaction of the Trustee the right of the pledgee to vote such Debt
Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control
with the Company or any such other obligor. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all Debt Securities of a series, if any, known by
the Company to be owned or held by or for the account of the Company or any
other obligor on such Debt Securities 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 such Debt Securities; and,
subject to the provisions of Section 8.01, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the facts
therein set forth and of the fact that all such Debt Securities not listed
therein are Outstanding for the purpose of any such determination.
SECTION 9.05. Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Debt Securities of any series
specified in this Indenture in connection with such action, any Holder of a
Debt Security which is shown by the evidence to be included in the Debt
Securities the Holders of which have consented to or are bound by consents
to such action, may, by filing written notice with the Trustee at its
principal office and upon proof of holding as provided in Section 9.02,
revoke such action so far as concerns such Debt Security. Except as
aforesaid any such action taken by the Holder of any Debt Security shall be
conclusive and binding upon such Holder and upon all future Holders and
owners of such Debt Security and of any Debt Security issued on transfer
thereof or in exchange or substitution therefor, irrespective of whether or
not any notation in regard thereto is made upon any such Debt Security.
ARTICLE TEN.
Holders' Meetings.
SECTION 10.01. Purposes of Meetings. A meeting of Holders of the
Debt Securities of all or any series may be called at any time and from
time to time pursuant to the provisions of this Article Ten for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee with
respect to such series, 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 pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Debt Securities of all or any series, as the case may be, under
any other provision of this Indenture or under applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Holders of Debt Securities of all or any series to
take any action specified in Section 10.01, to be held at such time and at
such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine. Notice of every meeting of the Holders of Debt
Securities of all or any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed by the Trustee to Holders of Debt Securities of
each series that may be affected by the action proposed to be taken at such
meeting at their addresses as they shall appear on the Debt Security
Register. Such notice shall be mailed not less than 20 nor more than 90
days prior to the date fixed for the meeting.
SECTION 10.03. Call of Meetings by Company or Holders. In case at
any time the Company, pursuant to a resolution by the Board of Directors,
or the Holders of at least 10% in aggregate principal amount of the Debt
Securities then Outstanding of each series that may be affected by the
action proposed to be taken shall have requested the Trustee to call a
meeting of such Holders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders may determine the
time and place in the Borough of Manhattan, The City of New York, for such
meeting and may call such meeting to take any action authorized in Section
10.01, by mailing notice thereof as provided in Section 10.02.
SECTION 10.04. Qualifications for Voting. To be entitled to vote at
any meeting of Holders of Debt Securities a Person shall (a) be a Holder of
one or more Debt Securities of a series affected by the action proposed to
be taken or (b) be a Person appointed by an instrument in writing as proxy
by a Holder of one or more such Debt Securities. The rights of Holders of
Debt Securities to have their votes counted shall be subject to the
provision in the definition of "Outstanding" in Section 1.01. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Debt Securities shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 10.05. Regulations. 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 Debt Securities, in regard to
proof of the holding of Debt Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall think fit. Except as otherwise permitted or required
by any such regulation, the holding of Debt Securities shall be proved in
the manner specified in Section 9.02 and the appointment of any proxy shall
be proved in the manner specified in said Section 9.02 or by having the
signature of the Person executing the proxy witnessed or guaranteed by any
bank, broker or trust company.
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The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debt Securities as provided in Section 10.03, in
which case the Company or the Holders of Debt Securities calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a secretary of the meeting shall be
elected by vote of the Holders of a majority in aggregate principal amount
of the Debt Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each Holder
of a Debt Security of a series entitled to vote at such meeting or proxy
shall be entitled to one vote for each 1,000 units of Specified Currency in
principal amount of Debt 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 Debt Security challenged or not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman
of the meeting shall have no right to vote except as a Holder of Debt
Securities of such series or proxy therefor. Any meeting of Holders of
Debt Securities duly called pursuant to the provisions of Section 10.02 or
10.03 may be adjourned from time to time and the meeting may be held as so
adjourned without further notice.
At any meeting of Holders of Debt Securities, the presence of Persons
holding or representing Debt Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; but, if
less than a quorum be present, the Persons holding or representing a
majority of the Debt Securities represented at the meeting may adjourn such
meeting with the same effect, for all intents and purposes, as though a
quorum had been present.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
meeting of Holders of Debt Securities shall be by written ballots on which
shall be subscribed the signatures of the Holders of Debt Securities
entitled to vote at such meeting or of their representatives by proxy, and
the letter or letters, serial number or numbers or other distinguishing
marks of the Debt Securities held or represented by him. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of holders of Debt Securities
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 mailed as provided in Section
10.02. The record shall be signed and verified by the affidavits of the
permanent 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.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. No Delay of Rights by Meeting. Nothing in this
Article Ten contained shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Holders of Debt Securities of any or
all 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 Debt
Securities under any of the provisions of this Indenture or of the Debt
Securities. ARTICLE ELEVEN.
Supplemental Indentures.
SECTION 11.01. Supplemental Indentures without Consent of Holders.
The Company, when authorized by the resolutions of the Board of Directors,
and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act) 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 Articles Five and Twelve hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Debt Securities of any or all series, and to make the
occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a
default or an Event of Default with respect to such series permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of
any such additional covenant, restriction or condition, such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default; and
(c) 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 the
Holders of the Debt Securities;
(d) to secure the Debt Securities of all series in accordance
with the provisions of Sections 5.05 and 12.02; or
(e) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to
one or more series of Debt Securities 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 Section 8.11; or
(f) to modify, amend or supplement this Indenture in such a
manner as to permit the qualification of any indenture supplemental
hereto under the Trust Indenture Act as then in effect, except that
nothing herein contained shall permit or authorize the inclusion in
any indenture supplemental hereto of the provisions referred to in
Section 316 (a) (2) of the Trust Indenture Act; or
(g) to provide for the issuance under this Indenture of Debt
Securities in coupon form (including Debt Securities registrable as to
principal only) and to provide for exchangeability of such Debt
Securities with Debt Securities of the same series issued hereunder in
fully registered form and to make all appropriate changes for such
purpose; or
(h) to establish any additional form of Debt Security, as
permitted by Section 2.02, and to provide for the issuance of any
additional series of Debt Securities, as permitted by Section 3.01,
and to set forth the terms thereof.
The Trustee is hereby required 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 11.01 may be executed by the Company and the Trustee without the
consent of the Holders of any of the Debt Securities at the time
Outstanding, notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. Supplemental Indentures with Consent of Holders. With
the consent (evidenced as provided in Section 9.01) of the Holders of
greater than 50% in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such supplemental indenture (all such
Holders voting as a single class), by act of said Holders delivered to the
Company and the Trustee, 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 for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Debt Securities of each series under this Indenture; provided, however,
that no such supplemental indenture shall (i) without the consent of the
Holder of each Outstanding Debt Security affected thereby, extend the fixed
maturity of any Debt Security, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or any
premium thereon, or make the principal thereof or interest or premium
thereon payable in any coin or currency other than that provided in the
Debt Securities or (ii) without the consent of the Holders of all of the
Outstanding Debt Securities of each series affected reduce the aforesaid
percentage of Debt Securities, the Holders of which are required to consent
(a) to any such supplemental indenture, (b) to rescind and annul a
declaration that any Debt Securities are due and payable as a result of the
occurrence of an Event of Default, (c) to waive any past default under the
Indenture and its consequences and (d) to waive compliance with Sections
5.02 and 5.04 (other than 5.04 (a) (1) and (2)) to 5.08.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders of Debt
Securities 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 supplement indenture.
It shall not be necessary for the consent of the Holders of Debt
Securities under this Section 11.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 11.03. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article
Eleven, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the Holders of Debt Securities 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.
SECTION 11.04. Notation on Debt Securities. Debt Securities
authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article Eleven may bear a
notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall so
determine, new Debt Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any modification
of this Indenture contained in any such supplemental indenture may be
prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Outstanding Debt Securities of such series.
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished to Trustee. The Trustee, subject to the provisions of Section
8.01 and 7.02, may receive an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article Eleven.
ARTICLE TWELVE.
Consolidation, Merger, Sale and Conveyance.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms.
Subject to the provisions of Section 12.02, nothing contained in this
Indenture or in any of the Debt 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 or conveyance of all or
substantially all of the property of the Company to any other corporation
(whether or not affiliated with the Company) authorized to acquire and
operate the same; provided, however, and the Company hereby covenants and
agrees, that any such consolidation, merger, sale or conveyance shall be
upon the condition that (a) immediately after such consolidation, merger,
sale or conveyance, the corporation (whether the Company or such other
corporation) formed by or surviving any such consolidation or merger, or to
which such sale or conveyance shall have been made, shall not be in default
in the performance or observance of any of the terms, covenants and
conditions of this Indenture to be kept or performed by the Company; (b)
the corporation (if other than the Company) formed by or surviving any such
consolidation or merger, or to which such sale or conveyance shall have
been made, shall be a corporation organized under the laws of the United
States of America or any state thereof; and (c) the due and punctual
payment of the principal of and premium, if any, and interest on all of the
Debt Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed 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 which shall have acquired such property.
SECTION 12.02. Debt Securities to be Secured in Certain Events. If,
upon any such consolidation or merger, or upon any such sale or conveyance,
or upon any acquisition by the Company by purchase or otherwise of all or
any part of the properties of any other corporation, any Principal Facility
owned by the Company or a Restricted Subsidiary immediately prior thereto
would thereupon become subject to any Security Interest securing
indebtedness not permitted to be incurred by Section 5.05 hereof, the
Company, prior to such consolidation, merger, sale, conveyance or
acquisition, will by indenture supplemental hereto satisfactory in form to
the Trustee secure the due and punctual payment of the principal of and
premium, if any, and interest on the Debt Securities of each series then
Outstanding (equally and ratably with any other indebtedness of the Company
then entitled thereto, subject to applicable priorities of payment) by a
direct lien on such Principal Facility which would thereupon become subject
to any such Security Interest, prior in rank to all liens other than any
theretofore existing thereon.
SECTION 12.03. Successor Corporation to be Substituted. In case of
any such consolidation, merger, sale or conveyance and upon the assumption
by the successor corporation, 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 premium, if any, and
interest on all of the Debt Securities and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to
be performed or observed by the Company, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if
it had been named herein as the party of the first part, and (except in the
event of a conveyance by way of lease) the predecessor corporation shall be
relieved of any further obligation under this Indenture and the Debt
Securities. Such successor corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of Mallinckrodt Group
Inc. any or all of the Debt Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and
upon the order of such successor corporation instead of the Company and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Debt
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Debt
Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Debt
Securities of each series so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities of such
series theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Debt Securities had been issued at the
date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Debt Securities thereafter to be issued as may be appropriate.
SECTION 12.04. Opinion of Counsel to Be Given Trustee. The Trustee,
subject to Section 8.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale or conveyance and any
such assumption complies with the provisions of this Article Twelve.
ARTICLE THIRTEEN.
Satisfaction and Discharge of Indenture.
SECTION 13.01. Satisfaction, Discharge and Defeasance of Debt
Securities of any Series. The Company shall be deemed to have paid and
discharged the entire indebtedness on all the Debt Securities of a series,
the provisions of this Indenture (except as to (x) the rights of Holders of
Debt Securities of such series to receive, from the money and, in the case
of Debt Securities denominated in U.S. Dollars, U.S. Government Obligations
deposited with the Trustee pursuant to Section 13.03 or the interest and
principal received by the Trustee in respect of such U.S. Government
Obligations, payment of the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest on such Debt
Securities on the Stated Maturities thereof or upon the Redemption Rates
for Debt Securities required to be redeemed pursuant to any mandatory
sinking fund or analogous provisions relating to Debt Securities of that
series or pursuant to any call for redemption relating to Debt Securities
of that series, (y) the Company's rights and obligations with respect to
such Debt Securities under Sections 3.06, 3.07, 13.03 and 13.04, 5.02,
5.04, 6.01, 8.06, 8.10, 8.11 and, to the extent applicable to such series,
Article Four, so long as the principal of (and premium, if any) and
interest on the Debt Securities of such series remain unpaid and,
thereafter, only the Company's rights and obligations under Sections 5.04,
8.06, 13.03 and 13.04, and (2) the rights, powers, trusts, duties and
immunities of the Trustee with respect to the Debt Securities of such
series) as it relates to such Debt Securities shall no longer be in effect,
and the Trustee, at the expense of the Company, shall upon Company Request,
execute proper instruments acknowledging the same if either:
(a) (1) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) Debt Securities which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.07 and (ii) Debt Securities for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Sections 13.03 and 13.04)
have been delivered to the Trustee for cancellation.
(2) the Company has paid or caused to be paid all other sums
payable under this Indenture in respect of the Debt Securities of such
series; and
<PAGE>
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
of the entire indebtedness of all Debt Securities of any such series
and the discharge of the Indenture as it relates to such Debt
Securities have been complied with; or
(b) (1) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation (i) have become due and
payable, or (ii) will become due and payable at their Stated Maturity
within one year, or (iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense of
the Company;
(2) the condition described in paragraph (1) of Section 13.02 has
been satisfied; and
(3) the conditions described in paragraphs (a) (2) and (a) (3) of
this Section 13.01 have been satisfied; or
(c) (1) the conditions referred to in paragraphs (b) (2) and (b)
(3) of this Section 13.01 have been satisfied;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in paragraph (1) of
Section 13.02 or on the ninety-first day after the date of such
deposit; provided, however, that should that condition fail to be
satisfied on or before such ninety-first day, the Trustee shall
promptly, upon satisfactory receipt of evidence of such failure,
return such deposit to the Company;
(3) the Company has either (i) delivered to the Trustee an
opinion of counsel of a nationally-recognized independent tax counsel
to the effect that Holders of the Debt Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as
a result of such deposit and the satisfaction, discharge and
defeasance contemplated by this paragraph (c) of this Section 13.01
and will be subject to Federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred or (ii) the Company shall
have received from, or there shall have been published by, the United
Stated Internal Revenue Service a ruling to the effect stated in (i)
of this Section 13.01 (c) (3); and
(4) the Company has received an Opinion of Counsel to the effect
that the satisfaction, discharge and defeasance contemplated by this
Section 13.01 will not result in the desisting of the Debt Securities
of that series from any nationally-recognized securities exchange on
which they are listed.
SECTION 13.02. Defeasance of Debt Securities of any Series. The
provisions of this Indenture (except as to (x) the rights of Holders of
Debt Securities of any series to receive, from the money and, in the case
of Debt Securities denominated in U.S. Dollars, U.S. Government Obligations
deposited with the Trustee pursuant to paragraph (1) below or the interest
and principal received by the Trustee in respect of such U.S. Government
Obligations, payment of the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest on such Debt
Securities on the State Maturities thereof or upon Redemption Dates for
Debt Securities required to be redeemed pursuant to any mandatory sinking
fund or analogous provisions relating to Securities of that series or
pursuant to any call for redemption relating to Debt Securities of that
series, (y) the Company's rights and obligations with respect to such Debt
Securities under Sections 3.06, 3.07, 13.03, 13.04, Article Seven (other
than subsections (d) and (e) of Section 7.01), Sections 5.01, 5.02, 5.04,
6.01, 8.06, 8.10, 8.11 and, to the extent applicable to such series,
Article Four, so long as the principal of (and premium, if any) and
interest on the Debt Securities of such series remain unpaid and,
thereafter, only the Company's rights and obligations under Sections 5.04,
8.06, 13.03 and 13.04, and (z) the rights, powers, trusts, duties and
immunities of the Trustee with respect to the Debt Securities of such
series) as it relates to Debt Securities of any series shall no longer be
in effect, and the Trustee, at the expense of the Company shall, upon
Company Request, execute proper instruments acknowledging the same if:
(1) the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose (A) money in an
amount, or (B) in the case of Debt Securities denominated in U.S.
Dollars, U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their
terms will provide on or before the due date of any payment in respect
of such series of Debt Securities money in an amount, or (C) in the
case of Debt Securities denominated in U.S. Dollars, a combination
thereof, sufficient, after payment of all Federal, state and local
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
installment of principal (and premium, if any) and interest on the
Outstanding Debt Securities of that series on the Stated Maturity of
such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments or payments
pursuant to any call for redemption applicable to Debt Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of the Indenture and of such Debt
Securities;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) the interest of the Holders in such deposit shall have been
duly perfected under the applicable provisions of the Uniform
Commercial Code; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
SECTION 13.03. Application of Trust Funds; Indemnification. (a)
Subject to the provisions of Section 13.04, all money and, in the case of
Debt Securities denominated in U.S. Dollars, U.S. Government Obligations
deposited with the Trustee pursuant to Section 13.01 or 13.02 and all money
received by the Trustee in respect of U.S. Government Obligations deposited
with the Trustee, shall be held in trust and applied by it, in accordance
with the provisions of the debt Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and
interest for whose payment such money and U.S. Government Obligations have
been deposited with or received by the Trustee as contemplated by Section
13.01 or 13.02.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 13.01 or 13.02 or the interest
and principal received in respect of such obligations, other than any such
tax, fee or other charge payable by or on behalf of Holders. The Company
shall be entitled to prompt notice of an assessment or the commencement of
any proceeding for which indemnification may be sought hereunder and, at
its election, to contest such assessment or to participate in, assume the
defense of, or settle such proceeding.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in Section 13.01 or 13.02 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 obligations or money were deposited or received.
SECTION 13.04. Return of Unclaimed Moneys. Any moneys deposited with
or paid to the Trustee or any paying agent for payment of the principal of
and premium, if any, or interest on Debt Securities and not applied but
remaining unclaimed by the Holders of Debt Securities for two years after
the date upon which the principal of and premium, if any, or interest on
such Debt Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent
on demand; and the Holder of any of the Debt Securities entitled to receive
such payment shall thereafter look only to the Company for any payment
thereof. ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders,
Officers and Directors.
SECTION 14.01. Indenture and Debt Securities Solely Corporate
Obligations. No recourse under or upon any obligation, covenant or
agreement of this Indenture, any supplemental indenture, or of any Debt
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
predecessor or 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 predecessor or 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 any of the Debt Securities or implied thereby; 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 Debt Securities or
implied thereby, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the
issue of such Debt Securities.ARTICLE FIFTEEN.
Miscellaneous Provisions.
SECTION 15.01. Provisions Binding on Successors of the Company. All
the covenants, stipulations, promises and agreements in this Indenture
contained by the Company shall bind its successors and assigns whether so
expressed or not.
SECTION 15.02. Indenture for Sole Benefit of Parties and Holders of
Debt Securities. Nothing in this Indenture or in the Debt Securities,
expressed or implied, shall give or be construed to give to any Person,
firm or corporation, other than the parties hereto, any agent of the
Trustee or the Company under this Indenture and the Holders of the Debt
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 such covenants, conditions and provisions being,
subject to the provisions of Articles Twelve and Fourteen, for the sole
benefit of the parties hereto, any agent of the Trustee or the Company
under this Indenture and the Holders of the Debt Securities.
SECTION 15.03. Addresses for Notices, etc. Any notice or demand
which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Holders of Debt Securities on the
Company may be given or served by being deposited, registered or certified
mail postage prepaid, in a post office letter box in the United States
addressed (until another address is filed by the Company with the Trustee)
to the Company, 7733 Forsyth Boulevard, St. Louis, Missouri 63105-1820,
Attention: Treasurer. Any notice, direction, request or demand by any
Holder of a Debt Security or the Company to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given
or made in writing at the principal office of the Trustee, addressed to the
attention of its Corporate Trust Department. Any notice, report or other
instrument required by any of the provisions of this Indenture to be given
by the Trustee to the Holders of Debt Securities of any or all series shall
be deemed to have been sufficiently given, for all purposes, when mailed by
first class mail.
SECTION 15.04. New York Contract. This Indenture shall be deemed to
be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said state.
SECTION 15.05. Evidence of Compliance with Conditions Precedent.
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, if any (including any covenant, compliance with which
constitutes a condition precedent), provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent
have been complied with, except that in the case of any such application or
demand as to which the furnishing of such document is specifically required
by any provision of this Indenture relating to such particular application
or demand, no additional certificate or opinion need to be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that
the Person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such 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 15.06. Legal Holidays. In any case where the date of
maturity of interest on or principal of or premium, if any, on any series
of Debt Securities or the date fixed for redemption of any Debt Security or
Debt Securities will not be a Business Day, or will be a legal holiday or a
day on which banking institutions are legally authorized or obligated to
close in any location where a paying agent appointed pursuant to Section
5.02 is located, then payment of such interest on or principal of and
premium, if any, on such Debt Securities need not be made by such paying
agent on such date but may be made by such paying agent on the next
succeeding Business Day that is not a day in such location that is either a
legal holiday or a day on which banking institutions are legally authorized
or obligated to close, with the same force and effect as if made on such
date of maturity or the date fixed for redemption and no interest shall
accrue for the period from and after such prior date.
SECTION 15.07. Trust Indenture Act to Control. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with
(i) 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 or (ii) any required provision of the Trust Indenture
Act, such required provision shall control.
SECTION 15.08. Table of Contents, Headings, etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of
the terms or provisions hereof.
SECTION 15.09. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original
and such counterparts shall together constitute but one and the same
instrument. First Trust of New York, National Association, hereby accepts
the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
SECTION 15.10. Determination of Principal Amount. Unless otherwise
specified as contemplated by Section 3.01 with respect to a particular
series of Debt Securities, whenever for purposes of this Indenture any
calculation is to be made of the aggregate principal amount of Debt
Securities of all series or all series affected by a particular matter and,
at such time, there are outstanding (a) any Debt Securities of any series
which are denominated in a Specified Currency other than U.S. Dollars, then
the aggregate principal amount of Debt Securities of such series which
shall be deemed to be outstanding for such purpose shall be that amount of
U.S. Dollars that could be obtained for such amount of such Specified
Currency at the Market Exchange Rate and/or (b) any Debt Securities of any
series which are Original Issue Discount Securities, then the aggregate
principal amount of Debt Securities of such series which shall be deemed to
be outstanding for such purpose shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the maturity thereof pursuant to
Section 7.01. For purposes of this Section 15.10, Market Exchange Rate
shall mean the noon U.S. Dollar buying rate in New York City for cable
transfers of the Specified Currency published by the Federal Reserve Bank
of New York; provided, however, that in the case of ECUs, Market Exchange
Rate shall mean the rate of exchange determined by the Commission of the
European Communities (or any successor thereto) as published in the
Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such Specified Currency, the
Trustee shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York or, in the
case of ECUs, the rate of exchange as published in the Journal, as of the
most recent available date, or quotations or, in the case of ECUs, rates of
exchange from one or more major banks in New York City or in the country of
issue of the currency in question, which for purposes of the ECU shall be
Belgium, or such other quotations or, in the case of ECU, rates of exchange
as the Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent aggregate principal amount in
respect of Debt Securities of a series denominated in a Specified Currency
other than U.S. Dollars in connection with any matter arising under this
Indenture, including, without limitation, any determination contemplated in
Section 7.01.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive to the extent permitted by law for
all purposes and irrevocably binding upon the Company and all Holders of
Debt Securities.
IN WITNESS WHEREOF, MALLINCKRODT GROUP INC. has caused this Indenture
to be signed and acknowledged by its Chairman of the Board of Directors,
President or a Vice President, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or an Assistant
Secretary, and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, has caused
this Indenture to be signed and acknowledged by one of its Vice Presidents,
has caused its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or one of its Assistant Secretaries, as of the
day and year first written above.
MALLINCKRODT GROUP INC.
By:
(CORPORATE SEAL)
<PAGE>
ATTEST: FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Trustee
By:
(CORPORATE SEAL)
ATTEST:
STATE OF MISSOURI ss.:
COUNTY OF
On the ____ day of _______________, 1995, before me personally came
___________________, to me known, who, being by me duly sworn, did depose
and say that (s)he resides at
____________________________________________________; that (s)he is
___________________________________ of MALLINCKRODT GROUP INC., one of the
corporations described in and which executed the foregoing instrument; that
(s)he knows the seal of said corporation; that the seal affixed to said
instrument bearing the name of said corporation is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; that (s)he signed her/his name thereto by like authority; and
said (s)he acknowledged said instrument to be her/his free act and deed and
the free act and deed of said corporation.
WITNESS my hand and official seal the day and year first above
written.
My Commission Expires
(Notarial Seal)
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On the ____ day of _______________, 1995, before me personally came
___________________, to me known, who, being by me duly sworn, did depose
and say that (s)he resides at
____________________________________________________; that (s)he is
___________________________________ of FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, one of the corporations described in and which executed the
foregoing instrument; that (s)he knows the seal of said corporation; that
the seal affixed to said instrument bearing the name of said corporation is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; that (s)he signed her/his name thereto by
like authority; and said (s)he acknowledged said instrument to be her/his
free act and deed and the free act and deed of said corporation.
WITNESS my hand and official seal the day and year first above
written.
My Commission Expires
(Notarial Seal)
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1934 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _________
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I.R.S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
________________________
For information, contact:
Terry L. McRoberts, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2500
________________________
MALLINCKRODT GROUP INC.
(Exact name of obligor as specified in its charter)
New York 36-1263901
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
7733 Forsyth Boulevard
St. Louis, Missouri 63105
(Address of principal executive offices) (Zip Code)
________________________
DEBT SECURITIES
Item 1. General Information.
Furnish the following information as to the trustee--
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Comptroller of the Currency Washington, D.C.
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation.
None.
Item 16. List of Exhibits.
Exhibit 1. Articles of Association of First Trust
of New York, National Association,
incorporated herein by reference to
Exhibit 1 of Form T-1, Registration No.
33-83774.
Exhibit 2. Certificate of Authority to Commence
Business for First Trust of New York,
National Association, incorporated
herein by reference to Exhibit 2 of
Form T-1, Registration No. 33-83774.
Exhibit 3. Authorization of the Trustee to
exercise corporate trust powers for
First Trust of New York, National
Association, incorporated herein by
reference to Exhibit 3 of Form T-1,
Registration No. 33-83774.
Exhibit 4. By-Laws of First Trust of New York,
National Association, incorporated
herein by reference to Exhibit 4 of
Form T-1, Registration No. 33-83774.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York,
National Association, required by
Section 321(b) of the Act, incorporated
herein by reference to Exhibit 6 of
Form T-1, Registration No. 33-83774.
Exhibit 7. Report of Condition of First Trust of
New York, National Association, as of
the close of business on September 2,
1994, published pursuant to law or the
requirements of its supervising or
examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust
Indenture Act of 1939, as amended, the trustee, First Trust
of New York, National Association, a national banking
association organized and existing under the laws of the
United States, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and
State of New York, on the 22nd day of February, 1995.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/David K. Leverich
David K. Leverich
Vice President EXHIBIT 7
First Trust of New York, N.A.
Statement of Financial Condition
As of 9/2/94
($000's) 9/2/94
Assets
Cash and Due From Depository Institutions $30,165
Federal Reserve Stock 3,150
Fixed Assets 470
Other Assets 72,625
Total Assets $106,410
Liabilities
Accounts Payable $410
Litigation Reserve 1,000
Other liabilities 0
Total Liabilities 1,410
Equity
Common and Preferred Stock 1,000
Surplus 104,000
Undivided Profits 0
Total Equity Capital 105,000
Total Liabilities and Equity Capital $106,410
To the best of the undersigned's determination, as of
this date the above financial information is true and
correct.
First Trust of New York, N.A.
By:/s/ Frank J. Gillhaus, Jr.
Vice President
Date: February 22, 1995
<PAGE>
