<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON ,
1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
ANIXTER INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 36-2361285
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) 4711 GOLF ROAD Identification No.)
SKOKIE, ILLINOIS 60076
(847) 677-2600
</TABLE>
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-------------------------
ANIXTER INTERNATIONAL INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 94-1658138
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) 2 NORTH RIVERSIDE PLAZA, SUITE 1900 Identification No.)
CHICAGO, ILLINOIS 60606
(312) 902-1515
</TABLE>
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-------------------------
JAMES E. KNOX
SENIOR VICE PRESIDENT, GENERAL COUNSEL & SECRETARY
ANIXTER INTERNATIONAL INC.
2 NORTH RIVERSIDE PLAZA, SUITE 1900
CHICAGO, ILLINOIS 60606
(312) 902-1515
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
with a copy to:
<TABLE>
<S> <C>
Ronald B. Given Benjamin F. Garmer, III
Mayer, Brown & Platt Foley & Lardner
190 South LaSalle Street 777 East Wisconsin Avenue
Chicago, Illinois 60603 Milwaukee, Wisconsin 53202
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
-------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) of
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) REGISTRATION
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<S> <C> <C> <C> <C>
Debt Securities............................. $200,000,000 100% $200,000,000 $68,966
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Guarantee of Debt Securities(2)............. -- -- -- --(3)
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</TABLE>
(1) Estimated in accordance with Rule 457(a) under the Securities Act of 1933
solely for purposes of calculating the registration fee.
(2) The Debt Securities being registered will be guaranteed by the Parent
Company Registrant.
(3) No additional consideration will be paid by the purchasers of the Debt
Securities for the Guarantee. Pursuant to Rule 457(n), no separate
registration fee is required for the Guarantee.
-------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD
BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES
LAWS OF ANY STATE.
SUBJECT TO COMPLETION, DATED , 1996
PROSPECTUS
$200,000,000
ANIXTER INC.
DEBT SECURITIES
PAYMENT OF PRINCIPAL, PREMIUM (IF ANY) AND INTEREST
UNCONDITIONALLY GUARANTEED BY ANIXTER INTERNATIONAL INC.
------------------------
Anixter Inc. (the "Company") may from time to time offer up to $200 million
aggregate principal amount, or, if applicable, the equivalent thereof in one or
more foreign currencies or currency units, of its unsecured debt securities
consisting of notes, debentures or other evidences of indebtedness (the "Debt
Securities"). The Debt Securities may be offered as separate series in amounts,
at prices and on terms to be determined at the time or times of sale. An
accompanying supplement to this Prospectus (the "Prospectus Supplement") will
set forth the specific terms and conditions of the Debt Securities offered
thereby, including, where applicable, the specific designation, aggregate
principal amount, denominations, maturity, rate or rates and time or times of
payment of interest, any terms for redemption, any terms for sinking or
analogous fund payment(s), the initial public offering price, the proceeds to
the Company and any other specific terms in connection with the offering and
sale of such Debt Securities. In the event of the issuance of Debt Securities at
original issue discount, the aggregate principal amount of Debt Securities
offered hereby will be a higher amount, provided that the total price at which
Debt Securities are sold to the public pursuant to this Prospectus will not
exceed $200 million, or the equivalent thereof in one or more foreign currencies
or currency units.
The Debt Securities will be general unsecured obligations of the Company
ranking pari passu with all other senior indebtedness and obligations of the
Company and senior in right of payment to all subordinated indebtedness and
obligations of the Company. Pursuant to the terms of the Indenture (as defined
herein), the Debt Securities will be unconditionally and irrevocably guaranteed
(the "Guarantee"), on a senior unsecured basis, by Anixter International Inc.,
the parent corporation of the Company (the "Guarantor"). See "The Guarantor" and
"Description of Debt Securities -- Guarantee."
The Company may sell the Debt Securities to or through underwriters or
dealers, and may also sell Debt Securities directly to other purchasers or
through agents designated from time to time by the Company. See "Plan of
Distribution." The names of such underwriters, dealers or agents, any applicable
commissions or discounts and the net proceeds to the Company from the sale of
the Debt Securities will be set forth in the accompanying Prospectus Supplement.
The Company may make application to list one or more series of Debt
Securities on one or more national securities exchanges. Any such application to
list Debt Securities will be described in the accompanying Prospectus
Supplement.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by the Prospectus Supplement applicable to the Debt
Securities being sold.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1996.
<PAGE> 3
AVAILABLE INFORMATION
The Guarantor is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Guarantor can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Midwest Regional Office, Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and Northeast Regional Office, 7
World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates, and at the
Internet web site maintained by the Commission at http://www.sec.gov. In
addition, such reports, proxy statements and other information concerning the
Guarantor can be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
The Company and the Guarantor have filed with the Commission a Registration
Statement on Form S-3 (together with any amendments thereto, the "Registration
Statement") (of which this Prospectus is a part) under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Debt Securities.
This Prospectus does not contain all of the information set forth in such
Registration Statement, certain parts of which have been omitted in accordance
with the rules and regulations of the Commission. Statements contained in this
Prospectus as to the contents of any contract or other document are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other document filed or incorporated by reference as an exhibit to
the Registration Statement, each such statement being qualified in all respects
by such reference and the exhibits and schedules thereto. For further
information regarding the Company and the Debt Securities, reference is hereby
made to the Registration Statement and such exhibits and schedules, which may be
inspected without charge at the office of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, and copies of which may be obtained from the
Commission upon payment of the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Guarantor with the
Commission pursuant to the Exchange Act are hereby incorporated herein by
reference:
1. The Guarantor's Annual Report on Form 10-K for the year ended
December 31, 1995.
2. The Guarantor's Quarterly Reports on Form 10-Q for the quarters
ended March 29, 1996 and June 28, 1996.
All documents filed by the Guarantor pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering made by this Prospectus shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference in this
Prospectus shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained in this Prospectus or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference in this Prospectus modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Guarantor will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any or all of the documents that have been or
may be incorporated in this Prospectus by reference (not including exhibits to
such documents unless such exhibits are specifically incorporated by reference
into such documents). Requests should be directed to James E. Knox, Senior Vice
President, General Counsel & Secretary, Anixter International Inc., 2 North
Riverside Plaza, Suite 1900, Chicago, Illinois 60606 (Telephone: (312)
902-1515).
-------------------------
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$", "dollars", "U.S.
dollars" or "U.S. $").
2
<PAGE> 4
THE COMPANY
The Company is a leading supplier of wiring systems, networking and
internetworking products for voice, data and video networks and electrical power
applications in North America, Europe, Asia and Latin America. The Company
stocks and/or sells a full line of these products from a network of 85 locations
in the United States, 19 in Canada, 17 in the United Kingdom, 28 in Continental
Europe, 10 in Latin America, 6 in Australia, and 11 in Asia. The Company sells
approximately 80,000 products to over 60,000 active customers and works with
over 2,000 suppliers. Its customers include international, national, regional
and local companies that are end users of these products and engage in
manufacturing, communications, finance, education, health care, transportation,
utilities and government. Also, the Company sells products to resellers such as
contractors, installers, system integrators, value added resellers, architects,
engineers and wholesale distributors. The Company's average order size is
approximately $1,600.
The products sold by the Company include communication (voice, data and
video) products used to connect personal computers, peripheral equipment,
mainframe equipment and various networks to each other. The products include an
assortment of transmission media (copper and fiber optic cable) and components,
as well as active data components for networking applications. The Company sells
products that are incorporated in local area networks ("LANs"), and the
internetworking of LANs to form wide area networks ("WANs"). The Company's
products also include electrical wiring system products used for the
transmission of electrical energy and control/monitoring of industrial
processes.
Increasingly, the Company's end user customer base is seeking complete
solutions to their network infrastructure needs as opposed to just networking
products. Therefore, in some circumstances the Company is providing network
design advice through its sales engineers prior to major sales commitments as
well as project management, staging and configuration during customer project
implementation, and customer training. On a post sale basis the Company provides
network trouble shooting, maintenance and warranty services. The Company's
service offerings do not include cable system installation, application software
development or the provision of terminal devices. The Company has designed its
services to be compatible with and not competitive to the principal activities
of its reseller customer base.
Prior to 1989, the Company's operations were primarily limited to North
America and the United Kingdom. In 1989, the Company made a major commitment to
expand its operations into the international voice, data and video
communications market. Since then, the Company has opened businesses throughout
Western Europe and in significant markets in the Pacific Rim (other than Japan
and Korea) and Latin America.
An important element of the Company's business strategy is to develop and
maintain close relationships with its key suppliers, which include the world's
leading manufacturers of networking and electrical wiring systems products. Such
relationships stress joint product planning, inventory management, technical
support, advertising and marketing. In support of this strategy, the Company
does not compete with its suppliers in product design or manufacturing
activities. Approximately 47% of the Company's purchases in 1995 were from its
five largest suppliers.
The Company competes with distributors and manufacturers who sell products
directly or through existing distribution channels to end users or other
resellers. In addition, the Company's future performance could be subject to
economic downturns and possibly rapid changes in applicable technologies. To
guard against inventory obsolescence, the Company has negotiated various return
and price protection agreements with its key suppliers. Although the Company's
relationships with its suppliers are good, the loss of a major supplier could
have a temporary adverse effect on the Company's business but would not have a
lasting impact since comparable products are available from alternate sources.
The Company is incorporated in the State of Delaware and its principal
offices are located at 4711 Golf Road, Skokie, Illinois 60076. The Company's
telephone number is (847) 677-2600.
3
<PAGE> 5
THE GUARANTOR
The Guarantor, formerly known as Itel Corporation, is primarily engaged in
providing networking and cabling solutions for network infrastructure
requirements through the Company, its sole operating subsidiary. See "The
Company." As of June 28, 1996, the Guarantor also owned approximately 31% of
ANTEC Corporation and its subsidiaries (collectively "ANTEC"), and certain
assets which are held for sale. The Guarantor is incorporated in the State of
Delaware and its principal offices are located at 2 North Riverside Plaza, Suite
1900, Chicago, Illinois 60606.
As of June 28, 1996, the market value of the Guarantor's 7,113,500 shares
of ANTEC common stock was approximately $113 million compared with a carrying
value of $75.4 million. ANTEC is a publicly traded communications technology
company, specializing in the design and engineering of hybrid fiber/coax (HFC)
broadband networks and the manufacturing, materials management and distribution
of products for these networks.
The principal assets held for sale at June 28, 1996, are those of Signal
Capital Corporation ("Signal Capital"). The financial business of Signal Capital
has been classified as assets held for sale in the Guarantor's consolidated
financial statements since its acquisition in 1988. The approximately $27
million of Signal Capital assets at June 28, 1996, represents approximately 2%
of the original acquired Signal Capital assets. The Guarantor continues to
liquidate the acquired Signal Capital assets in an orderly manner that maximizes
their value to shareholders and no material amounts of new loans or investments
are being made by Signal Capital.
USE OF PROCEEDS
The Company currently intends to use the net proceeds from the sale of any
Debt Securities for general corporate purposes, which may include the reduction
of indebtedness, possible acquisitions and such other purposes as will be stated
in any Prospectus Supplement. Pending such use, the net proceeds may be
temporarily invested in short-term investment securities or deposited in
interest-bearing accounts. The precise amounts and timing of the application of
proceeds will depend upon the funding requirements of the Company and the
availability of other funds.
RATIOS OF EARNINGS TO FIXED CHARGES
Set forth below are the ratios of earnings to fixed charges (unaudited) for
the Company for the six months ended June 28, 1996 and for the last five years:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED ----------------------------------------
JUNE 28, 1996 1995 1994 1993 1992 1991
- ---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
2.4 3.2 3.0 1.7 1.6 1.2
</TABLE>
For the purpose of computing the ratios of earnings to fixed charges,
earnings consist of income of the consolidated Company from continuing
operations before provision for income taxes and fixed charges, and fixed
charges consist of interest and financing fees on long-term debt and that
portion of rental expense deemed to represent interest.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the "Indenture"),
dated as of , 1996, by and among the Company, the Guarantor and The
Bank of New York, as Trustee (the "Trustee"). A copy of the Indenture is filed
as an exhibit to the Registration Statement of which this Prospectus forms a
part. The Indenture provides that Debt Securities may be issued from time to
time in one or more series pursuant to the terms of one or more Officer's
Certificates or supplemental indentures creating such series. The particular
terms of each series, or of Debt Securities forming a part of a series, which
are offered by a Prospectus Supplement ("Offered Debt Securities") will be
described in such Prospectus Supplement.
4
<PAGE> 6
The following summaries of certain provisions of the Indenture and the Debt
Securities do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the Indenture and any
Officer's Certificates or any supplemental indentures relating thereto,
including the definitions therein of certain terms. Wherever particular Sections
or defined terms of the Indenture are referred to herein or in a Prospectus
Supplement, such Sections or defined terms are incorporated by reference herein
or therein, as the case may be.
GENERAL
The Indenture provides that Debt Securities in separate series may be
issued thereunder from time to time without limitation as to aggregate principal
amount. The Company may specify a maximum aggregate principal amount for the
Debt Securities of any series. (Section 301) The Debt Securities are to have
such terms and provisions which are not inconsistent with the Indenture,
including terms and provisions relating to maturity, principal and interest, as
the Company may determine. The Debt Securities will be unsecured unsubordinated
obligations of the Company and will rank on a parity with all other unsecured
and unsubordinated indebtedness of the Company.
The applicable Prospectus Supplement will set forth the price or prices at
which the Offered Debt Securities will be issued and will describe the following
terms of such Offered Debt Securities: (i) the title of such Offered Debt
Securities; (ii) any limit on the aggregate principal amount of such Offered
Debt Securities or the series of which they are a part; (iii) if other than the
Trustee, the identity of each Security Registrar and Paying Agent; (iv) the date
or dates, or the method by which such date or dates are determined or extended,
on which the principal and premium (if any) of any of such Offered Debt
Securities will be payable; (v) the rate or rates (which may be fixed or
variable) at which any of such Offered Debt Securities will bear interest, or
the method, if any, by which such rates will be determined, the date or dates
from which any such interest will accrue, the Interest Payment Dates on which
any such interest will be payable, or the method by which such date will be
determined, and the basis on which interest shall be calculated, if other than
that of a 360-day year of twelve thirty-day months; (vi) if other than the
fifteenth day next preceding an Interest Payment Date, the Regular Record Date
with respect to an Interest Payment Date; (vii) the place or places, if any,
other than or in addition to the Corporate Trust Office, where the principal of
and any premium and interest on any of such Offered Debt Securities will be
payable; (viii) the period or periods within which, the price or prices at which
and the terms and conditions on which any of such Offered Debt Securities may be
redeemed, in whole or in part, at the option of the Company; (ix) the
obligation, if any, of the Company to redeem, repay or purchase any of such
Offered Debt Securities pursuant to any sinking fund or analogous provision or
at the option of the Holder thereof, and the period or periods within which, the
price or prices at which and the terms and conditions on which any of such
Offered Debt Securities will be redeemed, repaid or purchased, in whole or in
part, pursuant to any such obligation; (x) the denominations in which any of
such Offered Debt Securities will be issuable, if other than denominations of
$1,000 and any integral multiple thereof; (xi) if other than the currency of the
United States of America, the currency, currencies or currency units in which
the principal of or any premium or interest on any of such Offered Debt
Securities will be payable (and the manner in which the equivalent of the
principal amount thereof in the currency of the United States of America is to
be determined for purposes of determining the principal amount deemed to be
Outstanding at any time); (xii) if the amount of principal of or any premium or
interest on any of such Offered Debt Securities may be determined with reference
to an index, the manner in which such amounts will be determined; (xiii) if the
principal of or any premium or interest on any of such Offered Debt Securities
is to be payable, at the election of the Company or the Holder thereof, in one
or more currencies or currency units other than those in which such Offered Debt
Securities are stated to be payable, the currency, currencies or currency units
in which payment of any such amount as to which such election is made will be
payable, and the periods within which and the terms and conditions upon which
such election is to be made; (xiv) if other than the principal amount thereof,
the portion of the principal amount of any of such Offered Debt Securities which
will be payable upon declaration of acceleration of the Maturity thereof; (xv)
if applicable, that such Offered Debt Securities, in whole or any specified
part, are defeasible pursuant to the provisions of the Indenture described under
"Defeasance -- Defeasance and Discharge" or "Defeasance -- Covenant Defeasance",
or under both such captions; (xvi) any addition to or change in the Events of
Default applicable
5
<PAGE> 7
to any of such Offered Debt Securities and any change in the right of the
Trustee or the Holders to declare the principal of and any premium or interest
on any of such Offered Debt Securities due and payable; (xvii) any addition to
or change in the covenants and definitions in the Indenture or in the provisions
of the Indenture described under "Consolidation, Merger, Sale or Transfer" and
under "Covenants"; (xviii) whether any of such Offered Debt Securities will be
issuable in whole or in part in the form of one or more Global Securities and,
if so, the respective Depositaries for such Global Securities and, if different
from those described under the Indenture caption entitled "Registration,
Registration of Transfer and Exchange," any circumstances under which any such
Global Security may be exchanged for Offered Debt Securities registered, and any
transfer of such Global Security may be registered, in the names of Persons
other than the Depositary for such Global Security or its nominee; and (xix) any
other terms of such Offered Debt Securities not inconsistent with the provisions
of the Indenture. (Section 301) If specified in any applicable Prospectus
Supplement, the Debt Securities of any series may be issued in bearer form, and
if so issued, the applicable Prospectus Supplement will describe any additions
to or changes in any of the provisions of the Indenture which are necessary to
permit or facilitate such issuance. (Sections 301 and 901)
Debt Securities, including Original Issue Discount Securities, may be sold
at a substantial discount below their principal amount. Certain special United
States federal income tax considerations (if any) applicable to Debt Securities
sold at an original issue discount will be described in the applicable
Prospectus Supplement. In addition, certain special United States federal income
tax or other considerations (if any) applicable to any Debt Securities which are
denominated in a currency or currency unit other than United States dollars will
be described in the applicable Prospectus Supplement.
Except to the extent that the covenants described under the captions
"Certain Covenants of the Company and the Guarantor" and "Redemption at the
Option of the Holders in Certain Circumstances" may otherwise provide, neither
the Indenture nor the Debt Securities will contain any covenants or other
provisions designed to afford Holders of the Debt Securities protection in the
event of a highly leveraged transaction, change in credit rating or other
similar occurrence involving the Company, the Guarantor or any of their
respective Subsidiaries.
FORM, EXCHANGE AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities of each series will be issuable only in fully registered form,
without coupons, and only in denominations of $1,000 and integral multiples
thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Securities, Debt Securities of each series will
be exchangeable for other Debt Securities of the same series of any authorized
denomination and of a like tenor and aggregate principal amount. (Section 305)
Subject to the terms of the Indenture and the limitations applicable to
Global Securities, Debt Securities may be presented for exchange as provided
above or for registration of transfer (duly endorsed or with a written
instrument of transfer duly executed) at the office of the Security Registrar or
at one or more offices or agencies designated by the Company for such purpose.
No service charge will be made for any registration of transfer or exchange of
Debt Securities, but the Company or the Trustee will require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Security
Registrar being satisfied with the documents of title and identity of the person
making the request. Unless otherwise set forth in the applicable Prospectus
Supplement, the Company has appointed the Trustee as Security Registrar for each
series of Debt Securities for the purpose of registering Debt Securities and
transfers of Debt Securities at its Corporate Trust Office in New York, New
York. (Section 305) Any other office or agency (in addition to the Security
Registrar) initially designated by the Company for the registration and transfer
of any Debt Securities will be named in the applicable Prospectus Supplement.
The Company may at any time designate additional offices and agencies for the
registration and transfer or exchange of any Debt Securities or rescind such
designations, except that the Company will be required to maintain an office or
agency in each Place of Payment for the Debt Securities of each series. (Section
1002)
6
<PAGE> 8
If the Debt Securities of any series are to be redeemed in part, the
Company will not be required to (i) issue, register the transfer of or exchange
any Debt Security of that series during a period beginning at the opening of
business 15 days before the selection of such Debt Securities of that series to
be redeemed and ending at the close of business on the day of the mailing of a
notice of redemption; or (ii) register the transfer of or exchange any Debt
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any such Debt Security being redeemed in part. (Section 305)
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that the Debt Securities represented thereby. Each
Global Security will be registered in the name of a Depositary or a nominee
thereof identified in the applicable Prospectus Supplement, and will be
deposited with such Depositary or nominee or a custodian therefor.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be exchanged for Debt Securities
registered in the name of, and no transfer of a Global Security may be
registered to, any Person other than the Depositary for such Global Security or
any nominee of such Depositary unless (i) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or if the Company determines that the Depositary is unable to continue
as Depositary and the Company thereupon fails to appoint a successor Depositary;
(ii) the Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable and the transfer thereof so
registerable; (iii) the Company provides for such exchange in creating such
Global Security (which will be described in any applicable Prospectus
Supplement); (iv) there shall have occurred and be continuing an Event of
Default with respect to the Debt Securities evidenced by such Global Security;
or (v) there shall exist such circumstances, if any, in addition to or in lieu
of those described above as may be described in the applicable Prospectus
Supplement. All securities issued in exchange for a Global Security or any
portion thereof will be registered in such names as the Depositary may direct.
(Section 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities represented thereby for all purposes under the Debt Securities and
the Indenture. Except in the limited circumstances referred to above, owners of
beneficial interests in a Global Security will not be entitled to have such
Global Security or any Debt Securities represented thereby registered in their
names, will not receive or be entitled to receive physical delivery of
certificates representing Debt Securities in exchange therefor and will not be
considered to be the owners or Holders of such Global Security or any Debt
Securities represented thereby for any purpose under the Debt Securities or the
Indenture. All payments of principal of and any premium and interest on a Global
Security will be made to the Depositary or its nominee, as the case may be, as
the Holder thereof. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
Global Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of the Company, the Guarantor, the Trustee,
the Security Registrar, the Paying Agent or any agent of the Company, the
Guarantor or the Trustee will have any responsibility or liability for (i) any
aspects of the Depositary's or any participant's records relating to, or for
payments made on account of, beneficial interests in a Global Security, or for
maintaining, supervising or
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reviewing any records relating to such beneficial interests; (ii) the payments
to the beneficial owners of the Global Security of amounts paid to the
Depositary or its nominee; or (iii) any other matter related to the actions and
practices of the Depositary. (Section 305)
Secondary trading of notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a Global Security, in some cases, may trade in the Depositary's same-day
funds settlement system, in which secondary market trading activity in those
beneficial interests would be required by the Depositary to settle in
immediately available funds. There is no assurance as to the effect, if any,
that settlement in immediately available funds would have on trading activity in
such beneficial interests. Also, settlement for purchases of beneficial
interests in a Global Security upon the original issuance thereof may be
required to be made in immediately available funds.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest. (Section 307)
Principal and any premium and interest due on a Debt Security upon Maturity
or upon redemption or repurchase will be paid by wire transfer (if appropriate
instructions are received) against presentation and surrender of the Debt
Security by the Holder thereof at the office of the Paying Agent. Interest
payments on any Debt Security (other than interest due at Maturity or on
redemption or repurchase) will be made by check mailed to the address of the
Person entitled thereto as such address appears in the Security Register;
provided that a Holder of Debt Securities of any series which pay interest on
the same day and which are in an aggregate principal amount in excess of
$10,000,000 may elect to receive payments of interest with respect to such
series via wire transfer. (Section 307) The Paying Agent or Agents initially
designated by the Company for the Debt Securities of a particular series will be
named in the applicable Prospectus Supplement. The Company may at any time
designate additional Paying Agents or one or more other offices or agencies
where the Debt Securities may be presented or surrendered for payment and from
time to time rescind such designations, except that the Company will be required
to maintain an office or agency in each Place of Payment for the Debt Securities
of a particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent or the Trustee for the
payment of the principal of or any premium or interest on any Debt Security
which remain unclaimed at the end of one year after such principal, premium or
interest has become due and payable will be repaid to the Company, and the
Holder of such Security thereafter may, as an unsecured creditor, look only to
the Company for payment thereof, and all liability of the Paying Agent and the
Trustee with respect thereto, and all liability of the Company as a trustee
thereof, shall thereupon cease. (Section 1003)
GUARANTEE
The Guarantor irrevocably and unconditionally will guarantee to each Holder
and the Trustee the full and prompt performance of the Company's obligations
under the Indenture and the Debt Securities, including the payment of the
principal of, premium (if any) and interest on, the Debt Securities when and as
the same shall become due and payable, whether at maturity, upon redemption, or
by declaration of acceleration or otherwise. The Guarantee is a general
unsecured obligation of the Guarantor, and will rank pari passu in right of
payment with all existing or future unsubordinated indebtedness and obligations
of the Guarantor.
The Guarantor conducts substantially all of its business through the
Company and its subsidiaries and does not own any material assets other than the
stock of the Company, ANTEC and Signal Capital. See "The Guarantor." The
Guarantor is dependent on the receipt of dividends or other payments from the
Company, ANTEC and Signal Capital to make payments on the Guarantee of the Debt
Securities. Certain provisions in the debt agreements of the Company and ANTEC
currently restrict and in the future may prohibit such dividends or other
payments. Such provisions and the restrictions they impose will be described in
the accompanying Prospectus Supplement.
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CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that neither the Guarantor nor the Company may
consolidate with, or sell, lease or convey all or substantially all of their
respective assets to, or merge with or into any other person or entity unless
(i) either the Guarantor or the Company, as applicable, is the continuing
corporation, or the successor is a corporation organized and existing under the
laws of the United States or a state thereof and the successor corporation
expressly assumes by an indenture supplement the Guarantor's or the Company's
obligations, as applicable, on the Debt Securities and under the Indenture; (ii)
the Guarantor or the Company, as applicable, or the successor corporation, as
the case may be, is not immediately after the merger or consolidation, or the
sale, lease or conveyance, in default in the performance of any covenant or
condition under the Indenture; and (iii) after giving effect to the transaction,
no Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred or be continuing. (Section
801)
CERTAIN COVENANTS OF THE COMPANY AND THE GUARANTOR
The Indenture contains certain covenants, described below, with respect to
the incurrence of secured debt by the Guarantor, the Company and the Restricted
Subsidiaries (as hereinafter defined), sale and leaseback transactions on the
part of the Guarantor, the Company and the Restricted Subsidiaries, the transfer
of principal facilities to any party other than the Guarantor, the Company and
the Restricted Subsidiaries and the incurrence of funded debt by Restricted
Subsidiaries of the Company. These covenants do not, however, focus on the
amount of debt incurred in any transaction and do not otherwise afford
protection to holders of the Debt Securities in the event of a highly leveraged
transaction that is not in violation of the covenants. The Guarantor and the
Company do not currently intend to include any covenants or other provisions
affording such protection in the Debt Securities or any series thereof. If the
Guarantor and the Company determine in the future that it is desirable to
include covenants or other provisions of this type in any series of Debt
Securities, they will be described in the Prospectus Supplement for that series.
Limitations on Secured Debt
The Indenture provides that so long as any Debt Securities are outstanding
the Guarantor and the Company will not, and will not cause or permit a
Restricted Subsidiary to, create, incur, assume or guarantee any Secured Debt
(as hereinafter defined) or create any Security Interest (as hereinafter
defined) securing any indebtedness existing on the date of the Indenture that
would constitute Secured Debt if it were secured by a Security Interest, unless
the Debt Securities will be secured equally and ratably (subject to applicable
priorities of payment) by the Security Interest securing such Secured Debt or
indebtedness, except that the Guarantor, the Company and the Restricted
Subsidiaries may create, incur, assume or guarantee certain Secured Debt without
so securing the Debt Securities. Among such permitted Secured Debt is
indebtedness secured by (i) certain Security Interests to secure payment of the
cost of acquisition, construction, development or improvement of property; (ii)
Security Interests on property at the time of acquisition assumed by the
Guarantor, the Company or a Restricted Subsidiary, or on the property or on the
outstanding shares or indebtedness of a corporation or firm at the time it
becomes a Restricted Subsidiary or is merged into or consolidated with the
Guarantor, the Company or a Restricted Subsidiary, or on properties of a
corporation or firm acquired by the Guarantor, the Company or a Restricted
Subsidiary as an entirety or substantially as an entirety; (iii) Security
Interests arising from conditional sales agreements or title retention
agreements with respect to property acquired by the Guarantor, the Company or
any Restricted Subsidiary; (iv) Security Interests securing indebtedness of a
Restricted Subsidiary owing to the Guarantor, the Company or to another
Restricted Subsidiary; (v) mechanics, and other statutory liens, arising in the
ordinary course of business (including construction of facilities) in respect of
obligations that are not due or that are being contested in good faith; (vi)
liens for taxes, assessments or governmental charges not yet due or for taxes,
assessments or governmental charges that are being contested in good faith;
(vii) Security Interests (including judgment liens) arising in connection with
legal proceedings so long as such proceedings are being contested in good faith
and, in case of judgment liens, execution thereon is stayed; (viii) certain
landlords' liens on fixtures; (ix) Security Interests to secure partial,
progress, advance or other payments or indebtedness incurred for the purpose of
financing construction on or improvement of property subject to such Security
Interests; and
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(x) certain Security Interests in favor, or made at the request, of governmental
bodies. Additionally, such permitted Secured Debt includes (with certain
limitations) any extension, renewal or refunding, in whole or in part, of any
Secured Debt permitted at the time of the original incurrence thereof. In
addition to the foregoing, the Guarantor, the Company and the Restricted
Subsidiaries may incur Secured Debt, without equally and ratably securing the
Debt Securities, if the sum of (a) the amount of Secured Debt entered into after
the date of the Indenture and otherwise prohibited by the Indenture plus (b) the
aggregate value of Sale and Leaseback Transactions (as hereinafter defined)
entered into after the date of the Indenture, and otherwise prohibited by the
Indenture, does not exceed ten percent of Consolidated Net Tangible Assets (as
hereinafter defined). (Section 1005)
Limitations on Sale and Leaseback Transactions
The Indenture provides that so long as any Debt Securities are outstanding
the Guarantor and the Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless (a) the
Guarantor, the Company or such Restricted Subsidiary would be entitled to incur
Secured Debt permitted by the Indenture only by reason of the provision
described in the last sentence of the preceding paragraph equal in amount to the
net proceeds of the property sold, or transferred or to be sold or 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, or (b) the Guarantor, the Company or a Restricted Subsidiary
shall apply within 180 days after the effective date of such Sale and Leaseback
Transaction, an amount equal to such net proceeds (x) to 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 (as hereinafter defined) or a part
thereof or (y) to the redemption of Debt Securities or (z) to the repayment of
Senior Funded Debt (as hereinafter defined) of the Guarantor, the Company or of
any Restricted Subsidiary (other than the 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. In
lieu of applying an amount equal to such net proceeds to such redemption the
Guarantor or the Company may, within 180 days 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) for cancellation and
thereby reduce the amount to be applied to the redemption of the Debt Securities
by an amount equivalent to the aggregate principal amount of the Debt Securities
so delivered. (Section 1006)
Limitations on Transfers of Principal Facilities
The Indenture provides that so long as any Debt Securities are outstanding
the Guarantor and the Company will not, and will not cause or permit any
Restricted Subsidiary to, transfer any Principal Facility to any party other
than the Guarantor, the Company or a Restricted Subsidiary unless within 180
days after the effective date of such transaction an amount equal to the fair
value of such Principal Facility at the time of such transfer is applied (i) to
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) to the redemption of the Debt Securities or (iii) to the
repayment of Senior Funded Debt of the Guarantor, the Company or 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. In lieu of applying all or any part of
such amount to such redemption, the Guarantor or the Company may, within 180
days 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) for cancellation and thereby reduce the amount to be applied to the
redemption of the Debt Securities by an amount equivalent to the aggregate
principal amount of the Debt Securities so delivered. (Section 1007)
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Limitations on Senior Funded Debt by Restricted Subsidiaries of Company
The Indenture provides that so long as the Debt Securities are outstanding
the Company will not permit any of its Restricted Subsidiaries to (a) create,
assume or suffer to exist any Senior Funded Debt other than (i) Senior Funded
Debt which is permitted to such Restricted Subsidiary as Secured Debt under the
Indenture, (ii) Senior Funded Debt owed to the Guarantor, the Company or another
Restricted Subsidiary, (iii) Senior Funded Debt of a corporation or other entity
exiting at the time it becomes a Restricted Subsidiary or is merged with or into
a Restricted Subsidiary, (iv) Senior Funded Debt of a corporation or other
entity assumed by a Restricted Subsidiary in the acquisition of all or a portion
of the business of such corporation or other entity, and (v) Senior Funded Debt
existing as of the date of the Indenture, or (b) guarantee, directly or
indirectly through any arrangement which is substantially the equivalent of a
guarantee, any Senior Funded Debt of another Subsidiary except for (i)
guarantees existing on the date of the Indenture, and (ii) guarantees of Senior
Funded Debt permitted to a Restricted Subsidiary under the preceding clause (a).
(Section 1008)
CERTAIN DEFINITIONS
The following terms are defined substantially as follows in Section 101 of
the Indenture and are used herein as so defined.
"Consolidated Net Tangible Assets" means, in each case, with respect to the
Guarantor (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 (including redeemable preferred
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 expenses incurred in the
issuance of debt, and other like intangibles which, in each case, under
generally accepted accounting principles in effect on the date of the Indenture
would be included on a consolidated balance sheet of the Guarantor and its
Restricted Subsidiaries, less (b) loans, advances, equity investments and
guarantees (other than accounts receivable arising from the sale of merchandise
in the ordinary course of business) at the time outstanding that were made or
incurred by the Guarantor and its Restricted Subsidiaries to, in or for
Unrestricted Subsidiaries or to, in or for corporations while they were
Restricted Subsidiaries and which at the time of computation are Unrestricted
Subsidiaries.
"Principal Facility" means any land, building, machinery or equipment, or
leasehold interests and improvements in respect of the foregoing, owned, on the
date of the Indenture or thereafter, by the Guarantor, the Company or a
Restricted Subsidiary, which 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 one percent of the Consolidated Net Tangible Assets, other than
any such land, building, machinery or equipment, or leasehold interests and
improvements in respect of the foregoing which, in the opinion of the Board of
Directors of the Guarantor (evidenced by a Board Resolution), is not of material
importance to the business conducted by the Guarantor and its Subsidiaries taken
as a whole.
"Restricted Subsidiary" means (a) any Subsidiary other than an Unrestricted
Subsidiary and (b) any Subsidiary that was an Unrestricted Subsidiary but which,
subsequent to the date of the Indenture, is designated by the Guarantor and the
Company (evidenced by a resolution of their respective Boards of Directors) to
be a Restricted Subsidiary; provided, however, that the Guarantor and the
Company may not designate any such Subsidiary to be a Restricted Subsidiary if
the Guarantor or the Company would thereby breach any covenant or agreement
contained in the Indenture (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" means any sale or transfer made by the
Guarantor, the Company or one or more Restricted Subsidiaries (except a sale or
transfer made to the Guarantor, the Company or one or
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more Restricted Subsidiaries) of any Principal Facility that (in the case of a
Principal Facility which is a building or equipment) has been in operation, use
or commercial production (exclusive of test and start-up periods) by the
Guarantor, the Company or any Restricted Subsidiary for more than 180 days prior
to such sale or transfer, or that (in the case of a Principal Facility that is a
parcel of real property not containing a building) has been owned by the
Guarantor, the Company or any Restricted Subsidiary for more than 180 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 Guarantor, 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 Guarantor, the Company or such
Restricted Subsidiary will be discontinued on or before the expiration of such
period). Any Secured Debt permitted under the applicable section of the
Indenture will not be deemed to create or be defined to be a Sale and Leaseback
Transaction.
"Secured Debt" means any indebtedness for money borrowed by, or evidenced
by a note or other similar instrument of, the Guarantor, the Company or a
Restricted Subsidiary, and any other indebtedness of the Guarantor, 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 (other than indebtedness owed
by a Restricted Subsidiary to the Guarantor or the Company, or by a Restricted
Subsidiary to another Restricted Subsidiary, or by the Guarantor or the Company
to a Restricted Subsidiary), which in any such case is secured by (a) a Security
Interest in any property or assets of the Guarantor, the Company or any
Restricted Subsidiary, or (b) a Security Interest in any shares of stock owned
directly or indirectly by the Guarantor or the Company in a Restricted
Subsidiary or in indebtedness for money borrowed by a Restricted Subsidiary from
the Guarantor, 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 aggregate amount then owing
thereon by the Guarantor, the Company and the Restricted Subsidiaries.
"Security Interest" means any mortgage, pledge, lien, encumbrance or other
security interest which secures payment or performance of an obligation.
"Senior Funded Debt" means any obligation of the Guarantor, the Company or
any Restricted Subsidiary which constituted funded debt as of the date of its
creation and that, in the case of such funded debt of the Guarantor and 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.
"Subsidiary" means any corporation or other entity of which at the time of
determination the Guarantor, the Company and/or one or more Subsidiaries owns or
controls directly or indirectly more than 50 percent of the voting equity
securities.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or organized
after the date of the applicable Indenture, 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), (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 Guarantor, the
Company or a Subsidiary (including, without limitation, Signal Capital and its
Subsidiaries), (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
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been designated to be a Restricted Subsidiary pursuant to clause (b) of the
definition of "Restricted Subsidiary."
REDEMPTION AT THE OPTION OF THE HOLDERS IN CERTAIN CIRCUMSTANCES
The Indenture provides that if, during the 180-day period beginning 90 days
before the date of first public announcement or disclosure by the Company, the
Guarantor or any other Person (including, without limitation, directors or
officers of the Company or the Guarantor) of an intention to effect or the
occurrence of (whichever is the first to occur) a Restructuring Event (as
hereinafter defined) and ending 90 days thereafter (or such longer period as the
rating of the Debt Securities of such series shall be under publicly announced
consideration by a National Rating Agency (as hereinafter defined)), two or more
National Rating Agencies, at least one of which is either Moody's Investors
Service, Inc. or Standard & Poor's Corporation, shall downgrade their respective
ratings of the Debt Securities of such series from the ratings in effect at the
beginning of such 180-day period (each a "Downgrading Agency") (except that if a
National Rating Agency shall have downgraded its rating of the Debt Securities
of such series during the 90-day period prior to such public announcement or
disclosure, such National Rating Agency shall not be deemed a Downgrading Agency
if it upgrades its rating of the Debt Securities of such series by the close of
business on the date of such public announcement or disclosure to at least the
rating (the "Threshold Rating") it had given to the Debt Securities of such
series as of the beginning of such 180-day period and shall not thereafter
downgrade such rating to below the Threshold Rating during such 180-day period)
(the occurrence of the conditions specified above being a "Put Event"), then
each holder of Debt Securities of such series shall have the right to require
the Company to repurchase all or any portion of such holder's Debt Securities of
such series at a purchase price equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase (or if the
Debt Securities of such series are Original Issue Discount Securities, 100% of
that portion of the principal amount specified in the terms of that series that
would be payable if the maturity thereof were accelerated pursuant to the
Indenture), all as provided in, and subject to the terms of, the Indenture, as
the Indenture may be supplemented in connection with the issuance of a series of
Debt Securities thereunder. Subsequent to the occurrence of a Put Event, the
Company will give a notice to each holder of Debt Securities of such series
setting forth, among other things, details regarding the right of such holder to
require the Company to repurchase such holder's Debt Securities of such series,
the purchase date, and the name and address of the Paying Agent (which for this
purpose will, in the case of Registered Securities, be the Trustee and, in the
case of Bearer Securities, will be a Paying Agent in a place of payment located
outside the United States) to which such Debt Securities are to be presented and
surrendered. The Company will not be obligated, with respect to the Debt
Securities of any series, to offer to purchase such Debt Securities or give
notice to the holders thereof more than once with respect to the same Put Event.
(Section 1010)
For the purposes of this provision, the following terms shall have the
following meanings:
(i) "Restructuring Event" means any of the following: (1) any persons
other than the Guarantor becoming the beneficial owners, in the aggregate,
of voting stock of the Company having more than 30 percent of the voting
power of all the then outstanding voting stock of the Company; (2) any
person becoming the beneficial owner of voting stock of the Guarantor
having more than 30 percent of the voting power of all of the then
outstanding voting stock of the Guarantor, other than affiliates of Samuel
Zell or Ann Lurie or their respective heirs or beneficiaries; (3)
individuals who are not (i) directors of the Guarantor on the date of the
Indenture, or (ii) nominated to be directors by the Board of Directors of
the Guarantor, constituting a majority of the Board of Directors of the
Guarantor; (4) the Company or the Guarantor consolidating with or merging
into any other person (other than the Company consolidating or merging with
the Guarantor), or any other person consolidating with or merging into the
Company or the Guarantor, pursuant to a transaction in which capital stock
of the Company or the Guarantor then outstanding (other than capital stock
held by the Guarantor or capital stock held by any person which is a party
to such consolidation or merger) is changed or exchanged, other than solely
in connection with a change in the state of incorporation of the Guarantor
or the Company to another state of the United States of America or the
District of Columbia; (5) the Company, in one transaction or a series or
related transactions, conveying, transferring or leasing, directly or
indirectly, all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole (other than to a wholly owned Restricted
Subsidiary
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of the Company); or (6) the Guarantor or any of its Subsidiaries (including
the Company) paying or affecting a dividend or distribution (including by
way of recapitalization or reclassification) in respect of its capital
stock (other than solely to the Guarantor or any of its wholly owned
Subsidiaries, or other than solely for capital stock of the Guarantor), or
purchasing, redeeming, retiring, exchanging or otherwise acquiring for
value any of its capital stock (other than solely from the Guarantor or any
of its wholly owned Subsidiaries, or other than solely for capital stock of
the Guarantor or the Company), if the cash and fair market value of the
securities and assets paid or distributed (except to the Guarantor or any
Subsidiary) in connection therewith (determined on the record date for such
dividend or distribution or the effective date for such purchase,
redemption, retirement, exchange or other acquisition), together with the
cash and fair market value of the securities and assets paid or distributed
in connection with all other such dividends, distributions, purchases,
redemptions, retirements, exchanges and acquisitions effected (except as
received by the Guarantor or any Subsidiary) within the 12-month period
preceding the record date for such dividend or distribution or the
effective date for such purchase, redemption, retirement, exchange or other
acquisition (any such fair market value being determined on the respective
record or effective dates for such other dividends, distributions,
purchases, redemptions, retirements, exchanges and acquisitions), exceeds
30 percent of the aggregate fair market value of all capital stock of the
Guarantor outstanding on the record date for such dividend or distribution
or the effective date of such purchase, redemption, retirement, exchange or
other acquisition (determined on such record or effective date);
(ii) "National Rating Agency" means any of the following nationally
recognized statistical rating organizations (and, in each case, any
successor thereto): Duff & Phelps Credit Rating Co.; Moody's Investors
Service, Inc.; Standard & Poor's Corporation; and Fitch Investors Service,
L.P.
The Company and the Guarantor have agreed that for so long as any of the
Debt Securities of such series are outstanding and the Put Option has not risen,
they shall provide such information, pay such customary rating service fees and
related expenses and take all other reasonable action as shall be necessary or
appropriate to enable the National Rating Agencies to provide ratings for the
Debt Securities of such series. There can be no assurance that the Company will
have available funds for redemption of Debt Securities on the Payment Date.
The Company will comply with the 1934 Act to the extent applicable, and
with any other applicable federal or state securities law, in connection with
any obligation of the Company to purchase Debt Securities at the option of the
holders thereof as described above.
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (i) default in the
payment of any interest upon any Debt Security of that series when it became due
and payable, and continuance of that default for a period of 30 days; (ii)
default in the payment of the principal of (or premium, if any, on) any Debt
Security of that series when it became due and payable at its Maturity; (iii)
default in the deposit of any sinking fund payment, when due by the terms of a
Debt Security of that series; (iv) default in the performance, or breach, of any
covenant or warranty of the Company or the Guarantor in the Indenture with
respect to any Debt Security of that series (other than a covenant or warranty a
default in the performance of which or the breach of which is specifically dealt
with elsewhere or that has expressly been included in the Indenture solely for
the benefit of a series other than that series), and continuance of that default
or breach for a period of 30 days after written notice has been given by the
Trustee, or by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series, as provided in the Indenture; (v)
default, after any applicable grace period, by the Guarantor or the Company
under any instrument evidencing indebtedness of the Guarantor or the Company, as
applicable, for borrowed money, if the effect of such default is to cause more
than $10,000,000 in principal amount of such indebtedness to become due prior to
its stated maturity and that acceleration shall not be rescinded or annulled, or
that indebtedness shall not have been discharged, before written notice related
thereto has been given by the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Securities of that series, as provided in
the Indenture; (vi) certain events in bankruptcy, insolvency or reorganization;
and
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<PAGE> 16
(vii) any other default specified in the Prospectus Supplement relating to the
Debt Securities or such series. (Section 501)
If an Event of Default with respect to the Debt Securities of any series at
the time Outstanding shall occur and be continuing, either the Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series by notice as provided in the Indenture may declare the
principal amount of the Debt Securities of that series (or, in the case of any
Debt Security that is an Original Issue Discount Security, such portion of the
principal amount of such Debt Security, as may be specified in the terms of such
Debt Security) to be due and payable immediately. After any such acceleration,
but before a judgment or decree based on acceleration, the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that series may,
under certain circumstances, rescind and annul such acceleration if (i) the
Company has paid or deposited with the Trustee a sum sufficient to pay (a) all
overdue interest on all Outstanding Securities of that series, (b) the principal
of (and premium, if any, on) any Debt Securities of that series which have
become due otherwise than by such acceleration and any interest thereon at the
rate or rates prescribed therefor in such Debt Securities, (c) to the extent
that payment of such interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefore in such Debt Securities, and (d) certain fees
of the Trustee; and (ii) all Events of Default, other than the non-payment of
accelerated principal (or premium, if any) or interest on Debt Securities of
that series, have been cured or waived as provided in the Indenture. (Section
502) For information as to waiver of defaults, see "Modification and Waiver".
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable security or indemnity. (Section
603) Subject to such provisions for the giving of security or the
indemnification of the Trustee, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series will have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series; (ii) the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities of
that series have made written request, and such Holder or Holders have offered
reasonable indemnity, to the Trustee to institute such proceeding as Trustee;
and (iii) the Trustee has failed to institute such proceeding, and has not
received from the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series a direction inconsistent with such
request, within 60 days after such notice, request and offer. (Section 507)
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for the enforcement of payment of the principal of, premium (if
any) and interest on such Security on or after the applicable due date specified
in such Debt Security. (Section 508)
The Company and the Guarantor will be required to furnish to the Trustee
annually a statement by certain of their respective officers as to whether or
not the Company or the Guarantor, to their knowledge, is in default in the
performance or observance of any of the terms, provisions and conditions of the
Indenture and, if so, specifying all such known defaults. (Section 1004)
MODIFICATION AND WAIVER
Without the consent of any Holders of Outstanding Securities, the Company
and the Trustee may enter into one or more supplemental indentures for any of
the following purposes: (i) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor of the
covenants of the Company or the Guarantor in the Indenture and in the Debt
Securities; (ii) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Debt Securities (and if such
covenants are to be for the benefit of less than all series of Debt Securities,
stating that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power conferred
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<PAGE> 17
upon the Company or the Guarantor by the Indenture; (iii) to add to or change
any of the provisions of the Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Debt Securities of any series in bearer
form, registrable or not registrable as to principal, and with or without
interest coupons, or to permit or facilitate the issuance of Debt Securities of
any series in uncertificated form; (iv) to add to, change or eliminate any of
the provisions of the Indenture in respect of one or more series of Debt
Securities; provided, however, that any such addition, change or elimination
shall either (a) not adversely affect the rights of the Holders of Outstanding
Securities of any series in any material respect, or (b) not apply to any
Outstanding Securities of any series created prior to the execution of such
supplemental indenture where such addition, change or elimination has an adverse
effect on the rights of the Holders of such Outstanding Securities in any
material respect; (v) to secure the Debt Securities of any series; (vi) to
establish the form or terms of Debt Securities of any series as permitted by the
Indenture; (vii) to evidence and provide for the acceptance of appointment of a
successor Trustee under the Indenture with respect to the Debt Securities of one
or more series and to add to or change any of the provisions of the Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
under the Indenture by more than one Trustee; (viii) to cure any ambiguity or
defect in and to correct or supplement any provision in the Indenture or any
Debt Security of any series that may be inconsistent with any other provision in
the Indenture or in the Debt Security of such series, or to make any other
provisions with respect to matters or questions arising under the Indenture;
provided, however, that any such action shall not adversely affect the rights of
the Holders of Outstanding Securities of any series in any material respect;
(ix) to modify, eliminate or add to the provisions of the Indenture to such
extent as shall be necessary to effect qualification of the Indenture under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), or under
any similar federal statute hereafter enacted, and to add to the Indenture such
other provisions as may be expressly permitted by the Trust Indenture Act; or
(x) to amend or supplement the restrictions on the procedures for resale,
attempted resale and other transfers of any series of Debt Securities (whether
or not Outstanding) to reflect any change in applicable law or regulation (or
interpretation thereof) or in practices relating to the resale or transfer of
restricted securities generally. (Section 901)
Except as described above, the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by a modification or amendment (voting as one class) is required for the purpose
of adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture pursuant to a supplemental indenture; provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Security affected thereby, (i) extend the Stated
Maturity of the principal of, or any installment of principal of or interest on,
any Security, (ii) reduce the principal amount of, or any premium or interest
on, any Debt Security, (iii) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the Maturity thereof, (iv) change
the place or currency of payment of principal of, or any premium or interest on,
any Debt Security, (v) impair the right to institute suit for the enforcement of
any payment on or with respect to any Debt Security, (vi) reduce the percentage
in principal amount of Outstanding Securities of any series, the consent of
whose Holders is required for modification or amendment of the Indenture, (vii)
reduce the percentage in principal amount of Outstanding Securities of any
series necessary for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults or (viii) modify such provisions
with respect to modification and waiver. (Section 902)
The Holders of a majority in principal amount of the Outstanding Securities
of any series may waive compliance by the Company or the Guarantor with certain
restrictive provisions of the Indenture. (Section 1009) The Holders of a
majority in principal amount of the Outstanding Securities of any series may
waive any past default under the Indenture, except a default in the payment of
principal, premium or interest and certain covenants and provisions of the
Indenture which cannot be amended without the consent of the Holder of each
Outstanding Security of such series affected. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given or taken any
direction, notice, consent, waiver or other action under the Indenture as of any
date, (i) the principal amount of an Original Issue Discount Security that will
be deemed to be Outstanding will be the amount of the principal thereof that
would be due and payable as of such date
16
<PAGE> 18
upon acceleration of the Maturity thereof to such date, and (ii) the principal
amount of a Security denominated in one or more foreign currencies or currency
units that will be deemed to be Outstanding will be the U.S. dollar equivalent,
determined as of such date in the manner prescribed for such Debt Security, of
the principal amount of such Debt Security (or, in the case of a Debt Security
described in clause (i) above, of the amount described in such clause). Certain
Debt Securities, including those for whose payment or redemption money has been
deposited or set aside in trust for the Holders and those that have been fully
defeased pursuant to Section 1302, will not be deemed to be Outstanding.
(Section 101)
Except in certain limited circumstances, the Company will be entitled to
set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give or take any direction,
notice, consent, waiver or other action under the Indenture, in the manner and
subject to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee also will be entitled to set a record date for action
by Holders. If a record date is set for any action to be taken by Holders of a
particular series, such action may be taken only by persons who are Holders of
Outstanding Securities of that series on that record date, whether or not such
Holders remain Holders after such record date. To be effective, such action must
be taken by Holders of the requisite principal amount of such Debt Securities
within a specific period following the record date. For any particular record
date, this period will be 90 days. (Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect, at its option at any time, to have the provisions of Section
1302 of the Indenture, relating to defeasance and discharge of indebtedness, or
Section 1303 of the Indenture, relating to defeasance of certain covenants in
the Indenture, applied to the Debt Securities of any series, or to any specified
part of the series. (Section 1301)
Defeasance and Discharge. The Indenture provides that, upon the Company's
exercise of its option (if any) to have Section 1302 applied to any Debt
Securities, the Company will be discharged from all its obligations with respect
to such Debt Securities (except for certain obligations to exchange or register
the transfer of Debt Securities, to replace stolen, lost or mutilated Debt
Securities, to maintain paying agencies and to hold moneys for payment in trust)
upon the deposit in trust for the sole benefit of the Holders of such Debt
Securities of money or U.S. Government Obligations, or both, which, through the
payment of principal and interest, if any, in respect thereof in accordance with
their terms, will provide money in an amount sufficient to pay the principal of
and any premium and interest on such Debt Securities on the respective Stated
Maturities in accordance with the terms of the Indenture and such Debt
Securities. Such defeasance or discharge may occur only if, among other things,
the Company has delivered to the Trustee an Opinion of Counsel to the effect
that Holders of such Debt Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit,
defeasance and discharge were not to occur. (Sections 1302 and 1304)
Defeasance of Certain Covenants. The Indenture provides that, upon the
Company's exercise of its option (if any) to have Section 1303 applied to any
Debt Securities, the Company may omit to comply with certain restrictive
covenants, including those described under "Certain Covenants of the Company and
the Guarantor" and in clause (v) of "Events of Default" and any that may be
described in the applicable Prospectus Supplement, and the occurrence of certain
Events of Default, which are described in clause (iv) (with respect to such
restrictive covenants) and clause (v) under "Events of Default" and any that may
be described in the applicable Prospectus Supplement, will be deemed not to be
or result in an Event of Default, in each case with respect to such Debt
Securities. The Company, in order to exercise such option, will be required to
deposit, in trust for the sole benefit of the Holders of such Debt Securities,
money or U.S. Government Obligations, or both, which, through the payment of
principal and interest, if any, in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
any premium and interest on such Debt Securities on the respective stated
maturities relating thereto or on redemption in accordance with the terms of the
Indenture and such Debt Securities. The Company will also be required, among
other things, to deliver to the Trustee an Opinion of Counsel to the effect that
Holders of such Debt Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such
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<PAGE> 19
deposit and defeasance of certain obligations and will be subject to federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit and defeasance were not to occur. (Sections
1303 and 1304)
NOTICES
Except as may be described in any Prospectus Supplement with respect to the
Holders of a particular series of Debt Securities, notices to Holders of Debt
Securities will be given by mail to the addresses of such Holders as they may
appear in the Security Register. (Sections 101 and 106)
TITLE
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the owner
thereof (whether or not such Debt Security may be overdue) for the purpose of
making payment and for all other purposes. (Section 308)
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the law of the State of New York. (Section 113)
INFORMATION CONCERNING THE TRUSTEE
The Company maintains a banking relationship with the Trustee in the
ordinary course of its business, and the Trustee participates, along with
several other banks, in the Company's credit facility.
FOREIGN CURRENCY RISKS
GENERAL
The principal of, or any premium or interest on, Debt Securities of a
series may be denominated in such foreign currencies or currency units as may be
designated by the Company at the time of offering (the "Foreign Currency
Securities").
THE INFORMATION SET FORTH BELOW DOES NOT DESCRIBE ALL RISKS OF AN
INVESTMENT IN FOREIGN CURRENCY SECURITIES THAT RESULT FROM SUCH DEBT SECURITIES
BEING DENOMINATED IN A FOREIGN CURRENCY OR CURRENCY UNIT EITHER AS SUCH RISKS
EXIST AT THE DATE OF THIS PROSPECTUS OR AS SUCH RISKS MAY CHANGE FROM TIME TO
TIME. ANY ADDITIONAL MATERIAL FOREIGN CURRENCY RISKS PERTAINING TO A PARTICULAR
DEBT SECURITY DENOMINATED IN A FOREIGN CURRENCY WILL BE DISCLOSED IN THE
PROSPECTUS SUPPLEMENT REGARDING SUCH DEBT SECURITY. PROSPECTIVE PURCHASERS
SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED
BY AN INVESTMENT IN FOREIGN CURRENCY SECURITIES. FOREIGN CURRENCY SECURITIES ARE
NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT
TO FOREIGN CURRENCY TRANSACTIONS.
Unless otherwise indicated in the applicable Prospectus Supplement, a
Foreign Currency Security will not be sold in, or to a resident of, the country
of the Specified Currency (as defined below) in which such Debt Security is
denominated. The information set forth below is by necessity incomplete and
prospective purchasers of Foreign Currency Securities should consult their own
financial and legal advisors with respect to any matters that may affect the
purchase or holding of a Foreign Currency Security or the receipt of payments of
principal of and any premium and interest on a Foreign Currency Security in a
Specified Currency.
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<PAGE> 20
EXCHANGE RATES AND EXCHANGE CONTROLS
An investment in Foreign Currency Securities entails significant risks that
are not associated with a similar investment in a security denominated in U.S.
dollars. Such risks include, without limitation, the possibility of significant
changes in the rate of exchange between the U.S. dollar and the currency or
currency unit designated by the Company at the time of offering for payments of
principal or any premium or interest on the Foreign Currency Securities (the
"Specified Currency") and the possibility of the imposition or modification of
foreign exchange controls by either the United States or foreign governments.
Such risks generally depend on economic and political events and the supply of
and demand for the relevant currencies over which the Company has no control. In
recent years, rates of exchange between the U.S. dollar and certain foreign
currencies have been highly volatile and such volatility may be expected in the
future. Fluctuations in any particular exchange rate that have occurred in the
past are not necessarily indicative, however, of fluctuations in the rate that
may occur during the term of any Foreign Currency Security. Depreciation of the
Specified Currency applicable to a Foreign Currency Security against the U.S.
dollar would result in a decrease in the U.S. dollar-equivalent yield of such
Debt Security, in the U.S. dollar-equivalent value of the principal repayable at
Maturity or any premium or interest on such Debt Security and, generally, in the
U.S. dollar-equivalent market value of such Debt Security.
Governments have imposed from time to time exchange controls and may in the
future impose or revise exchange controls at or prior to a Foreign Currency
Security's Maturity. Even if there are not exchange controls, it is possible
that the Specified Currency for any particular Foreign Currency Security would
not be available at the time or times of payment on such Debt Security due to
circumstances beyond the control of the Company.
JUDGMENTS
In the event an action based on Foreign Currency Securities were commenced
in a court of the United States, it is likely that such court would grant
judgment relating to such Debt Securities only in U.S. dollars. It is not clear,
however, whether, in granting such judgment, the rate of conversion into U.S.
dollars would be determined with reference to the date of default, the date
judgment is rendered or some other date. Holders of Foreign Currency Securities
would bear the risk of exchange rate fluctuations between the time the amount of
the judgment is calculated and the time the Trustee converts U.S. dollars into
the Specified Currency for payment of the judgment.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities being offered hereby: (i) directly to
purchasers, (ii) through agents, (iii) through underwriters and (iv) through
dealers.
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of the Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis for
the period of its appointment.
If underwriters are utilized in the sale, the Company and the Guarantor
will execute an underwriting agreement with such underwriters at the time of
sale to such underwriters and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement which will be used by
the underwriters to make resales of the Debt Securities in respect of which this
Prospectus is delivered to the public. Any underwriters will acquire Debt
Securities for their own account and may resell such Debt Securities from time
to time in one or more transactions, including negotiated transactions, at fixed
public offering prices or at varying prices determined at the time of sale. Debt
Securities may be offered to the public either through underwriting syndicates
represented by managing underwriters, or directly by the managing underwriters.
Only underwriters named in the Prospectus Supplement are deemed to be
underwriters in
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connection with the Debt Securities offered thereby. If any underwriters are
utilized in the sale of the Debt Securities, the underwriting agreement will
provide that the obligations of the underwriters are subject to certain
conditions precedent and that the underwriters with respect to a sale of Debt
Securities will be obligated to purchase all such Debt Securities, if any are
purchased.
If a dealer is utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, the Company will sell such Debt Securities
to the dealer, as principal, and the terms of the transaction will be set forth
in the Prospectus Supplement. The dealer may then resell such Debt Securities to
the public at varying prices to be determined by such dealer at the time of
resale.
Agents, underwriters and dealers may be entitled under agreements entered
into with the Company and the Guarantor to indemnification by the Company and
the Guarantor against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which the agents,
underwriters or dealers may be required to make in respect thereof. Agents,
underwriters and dealers may be customers of, engage in transactions with, or
perform services for the Company or the Guarantor in the ordinary course of
business.
Offers to purchase Debt Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional investors
or others. The terms of any such sales will be described in the Prospectus
Supplement relating thereto.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents and underwriters to solicit offers by certain institutions to
purchase Debt Securities from the Company at the public offering price set forth
in such Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date or dates stated in
such Prospectus Supplement. Each Contract will be for an amount not less than,
and unless the Company otherwise agrees the aggregate principal amount of Debt
Securities sold pursuant to Contracts shall be not less nor more than, the
respective amounts stated in such Prospectus Supplement. Institutions with whom
Contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but shall in all cases be
subject to the approval of the Company. Contracts will not be subject to any
conditions except the purchase by an institution of the Debt Securities covered
by its Contracts shall not at the time of delivery be prohibited under the laws
of any jurisdiction in the United States to which such institution is subject. A
commission indicated in the Prospectus Supplement will be paid to underwriters
and agents soliciting purchases of Debt Securities pursuant to Contracts
accepted by the Company.
The place, time of delivery, specific terms and manner of sale for the Debt
Securities in respect of which this Prospectus is delivered are set forth in the
accompanying Prospectus Supplement.
All Debt Securities will be a new issue of securities with no established
trading market. Any underwriters to whom Debt Securities are sold by the Company
for public offering and sale may make a market in such Debt Securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of or the trading markets for any Debt Securities.
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<PAGE> 22
LEGAL MATTERS
The validity of the Debt Securities and the Guarantee will be passed upon
for the Company and the Guarantor, as applicable, by James E. Knox, Senior Vice
President, General Counsel and Secretary of the Guarantor. Mr. Knox owns a total
of 464,244 shares and options to acquire shares of the Guarantor's common stock.
Certain legal matters will be passed upon for the underwriters, dealers,
purchasers or agents by Foley & Lardner, Milwaukee, Wisconsin.
EXPERTS
The consolidated financial statements and schedules included in the Annual
Report on Form 10-K of Anixter International Inc. for the year ended December
31, 1995, incorporated by reference in this Prospectus, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements and schedules are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE GUARANTOR
OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR THE GUARANTOR SINCE THE DATE
HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE
IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
PROSPECTUS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
The Company........................... 3
The Guarantor......................... 4
Use of Proceeds....................... 4
Ratios of Earnings to Fixed Charges... 4
Description of the Debt Securities.... 4
Foreign Currency Risks................ 18
Plan of Distribution.................. 19
Legal Matters......................... 21
Experts............................... 21
</TABLE>
================================================================================
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[LOGO]
$200,000,000
DEBT SECURITIES
-----------------------
PROSPECTUS
-----------------------
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<PAGE> 24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities covered hereby, other than underwriting and other discounts and
commissions, are, subject to future contingencies, estimated to be as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee................ $ 68,966
Printing and Engraving Expenses.................................... 20,000
Fees of Rating Agencies............................................ 110,000
Trustee Fees and Expenses.......................................... 7,000
Accounting Fees and Expenses....................................... 18,000
Legal Fees and Expenses............................................ 10,000
Miscellaneous Expenses............................................. 6,034
--------
Total......................................................... $240,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the Delaware General Corporation Law, the Registrants' By-Laws
and individual indemnity agreements, directors and officers of the Registrants
are entitled to mandatory indemnification from the applicable Registrant against
certain liabilities and expenses (i) to the extent such officers or directors
are successful in the defense of a proceeding and (ii) in proceedings in which
the director or officer is not successful in defense thereof, if (in the latter
case only) the director or officer acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
applicable Registrant, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
Expenses for the defense of any action for which indemnification may be
available may be advanced by the Registrants under certain circumstances.
The indemnification provided by the Delaware General Corporation Law and
the Registrants' By-Laws is not exclusive of any other rights to which a
director or officer of the respective Registrants may be entitled. The general
effect of the foregoing provisions may be to reduce the circumstances which an
officer or director may be required to bear the economic burden of the foregoing
liabilities and expense.
The Registrants maintain a liability insurance policy for their directors
and officers as permitted by Delaware law which may extend to, among other
things, liability arising under the Securities Act of 1933.
The proposed form of Underwriting Agreement for the Debt Securities
contains provisions under which the Underwriters agree to indemnify the
directors and officers of the Registrants against certain liabilities, including
liabilities under the Securities Act of 1933.
II-1
<PAGE> 25
ITEM 16. EXHIBITS.
The exhibits filed herewith are as specified on the Exhibit Index included
herein.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 26
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Skokie, State of Illinois, on July 30, 1996.
ANIXTER INC.
By: /s/ ROBERT W. GRUBBS, JR.
------------------------------------
Robert W. Grubbs, Jr.
President and Chief Executive
Officer
Each person whose signature appears below constitutes and appoints James E.
Knox and John A. Dul, and each of them individually, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and any additional registration statement to be
filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and
to file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully to or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------- ------------------------------------------ -------------
<C> <S> <C>
/s/ ROBERT W. GRUBBS, JR. President, Chief Executive Officer and July 30, 1996
- ----------------------------------- Director (Principal Executive Officer)
Robert W. Grubbs, Jr.
/s/ DENNIS J. LETHAM Executive Vice President-Finance July 30, 1996
- ----------------------------------- (Principal Financial Officer)
Dennis J. Letham
/s/ JAMES M. FROISLAND Vice President-Controller July 30, 1996
- ----------------------------------- (Principal Accounting Officer)
James M. Froisland
/s/ ROD F. DAMMEYER Director July 30, 1996
- -----------------------------------
Rod F. Dammeyer
/s/ JAMES E. KNOX Director July 30, 1996
- -----------------------------------
James E. Knox
</TABLE>
II-4
<PAGE> 28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on July 30, 1996.
ANIXTER INTERNATIONAL INC.
By: /s/ ROD F. DAMMEYER
------------------------------------
Rod F. Dammeyer
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------- ------------------------------------------ --------------
<C> <S> <C>
/s/ ROD F. DAMMEYER President, Chief Executive Officer and July 30, 1996
- ----------------------------------- Director
Rod F. Dammeyer (Principal Executive Officer)
/s/ DENNIS J. LETHAM Senior Vice President-Finance July 30, 1996
- ----------------------------------- (Principal Financial Officer)
Dennis J. Letham
/s/ JAMES M. FROISLAND Vice President-Controller July 30, 1996
- ----------------------------------- (Principal Accounting Officer)
James M. Froisland
/s/ LORD JAMES BLYTH* Director July 30, 1996
- -----------------------------------
Lord James Blyth
/s/ BERNARD F. BRENNAN* Director July 30, 1996
- -----------------------------------
Bernard F. Brennan
/s/ ROBERT E. FOWLER, JR.* Director July 30, 1996
- -----------------------------------
Robert E. Fowler, Jr.
/s/ ROBERT W. GRUBBS, JR. Director July 30, 1996
- -----------------------------------
Robert W. Grubbs, Jr.
/s/ F. PHILIP HANDY* Director July 30, 1996
- -----------------------------------
F. Philip Handy
/s/ MELVIN N. KLEIN* Director July 30, 1996
- -----------------------------------
Melvin N. Klein
</TABLE>
II-5
<PAGE> 29
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------- ------------------------------------------ --------------
<C> <S> <C>
Petty/s/ SHELI Z. ROSENBERG* Director July 30, 1996
- -----------------------------------
Sheli Z. Rosenberg
/s/ STUART M. SLOAN* Director July 30, 1996
- -----------------------------------
Stuart M. Sloan
/s/ THOMAS C. THEOBALD* Director July 30, 1996
- -----------------------------------
Thomas C. Theobald
/s/ SAMUEL ZELL* Director July 30, 1996
- -----------------------------------
Samuel Zell
</TABLE>
*By: /s/ JAMES E. KNOX
---------------------------
James E. Knox
Attorney-in-Fact
II-6
<PAGE> 30
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
- ------- ------------------------------------------------------------------------------------
<S> <C>
(1) Form of Underwriting Agreement relating to the Debt Securities.
(4.1) Form of Indenture among Anixter Inc., Anixter International Inc. and The Bank of New
York, as Trustee, relating to the Debt Securities and the Guarantee.
(5) Opinion of James E. Knox (including consent of counsel).*
(12) Statement re computation of ratios of earnings to fixed charges.
(23.1) Consent of Ernst & Young LLP.
(23.2) Consent of James E. Knox (filed as part of Exhibit (5)).*
(24.1) Powers of Attorney for Anixter Inc. (included on the applicable signature page of
this Registration Statement).
(24.2) Powers of Attorney for Anixter International Inc.
(25) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank
of New York.
</TABLE>
- -------------------------
* To be filed by amendment.
<PAGE> 1
EXHIBIT 1
ANIXTER INC.
(a Delaware corporation)
ANIXTER INTERNATIONAL INC.
(a Delaware corporation)
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name and address of Underwriters or Representatives]
________________________________________________
________________________________________________
________________________________________________
________________________________________________
Ladies and Gentlemen:
Anixter Inc., a Delaware corporation (the "Company"), proposes to issue and
sell up to $200,000,000 aggregate initial public offering price of its debt
securities (the "Securities"), from time to time, in or pursuant to one or more
offerings on terms to be determined at the time of sale. The Securities will be
unconditionally guaranteed (the "Guarantee") as to payment of principal, premium
(if any) and interest by Anixter International Inc., the parent of the Company
(the "Guarantor").
The Securities will be issued in one or more series as senior
indebtedness (the "Debt Securities") under an indenture, dated as of
____________, 1996 (the "Indenture"), between the Company, the Guarantor and The
Bank of New York, as trustee (the "Trustee"). Each series of Debt Securities
may vary, as applicable, as to title, aggregate principal amount, interest rate
or formula and timing of payments thereof, stated maturity date, redemption
and/or repayment provisions, sinking fund requirements and any other variable
terms established by or pursuant to the Indenture.
Whenever the Company determines to make an offering of Securities
through one or more underwriters (the "Underwriters"), the Company will enter
into an agreement (each, a "Terms Agreement") providing for the sale of such
Securities to, and the purchase and offering thereof by, such Underwriters, as
well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the aggregate
principal amount of Securities to be issued (the "Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to substitution
as provided in Section 10
<PAGE> 2
hereof), the name of any Underwriter acting as manager or co-manager in
connection with such offering, the aggregate principal amount of Underwritten
Securities which each such Underwriter severally agrees to purchase, whether
such offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Underwritten Securities and any other
material variable terms of the Underwritten Securities. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the form
of an exchange of any standard form of written telecommunication between the
Company and the Underwriters. Each offering of Underwritten Securities through
a single Underwriter or through an underwriting syndicate managed by an
Underwriter will be governed by this Underwriting Agreement, as supplemented by
the applicable Terms Agreement.
The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-__________) [and pre-effective amendment[s] no[s]. ______________ thereto]
for the registration of the Securities and the Guarantee under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement. Such registration statement (as so amended, if
applicable) has been declared effective by the Commission and each Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement (as so amended, if applicable), including
the information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the
1933 Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus and the prospectus supplement
relating to the offering of the Underwritten Securities, in the form first
furnished to the Underwriters by the Company for use in connection with the
offering of the Underwritten Securities, are collectively referred to herein as
the "Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Company files a registration
statement with the Commission pursuant to Section 462(b) of the 1933 Act
Regulations (the "Rule 462 Registration Statement"), then, after such filing,
all references to "Registration Statement" shall be deemed to include the Rule
462 Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall be deemed to include the final or preliminary prospectus and
the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as the
case may be, in the form first furnished to the Underwriters by the Company in
reliance upon Rule 434 of the 1933 Act Regulations, and all references in this
Underwriting Agreement to the date of the Prospectus shall mean the date of the
Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission
-2-
<PAGE> 3
pursuant to Rule 424(b) of the 1933 Act Regulations, that was used after such
effectiveness and prior to the execution and delivery of the applicable Terms
Agreement. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by the Company and the Guarantor.
The Company and the Guarantor jointly and severally represent and warrant to the
Underwriters, as of the date hereof, and to each Underwriter named in the
applicable Terms Agreement, as of the date thereof, as of the Closing Time (as
defined below) and, if applicable, as of each Date of Delivery (as defined
below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company and the
Guarantor meet the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company or the Guarantor, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. In addition, each Indenture has been
duly qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including
the filing of the Guarantor's most recent Annual Report on Form 10-K with
the Commission (the "Annual Report on Form 10-K")) became effective and at
each Representation Date, the Registration Statement, any Rule 462(b)
Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933
Act and the
-3-
<PAGE> 4
1933 Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. At the date of the Prospectus, at the Closing time and at each
Date of Delivery, if any, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
If the Company and the Guarantor elect to rely upon Rule 434 of the 1933 Act
Regulations, the Company and the Guarantor will comply with the requirements of
Rule 434. Notwithstanding the foregoing, the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Underwriter through
Merrill Lynch expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with the offering of Underwritten Securities will, at the time of
such delivery, be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act Regulations")
and, when read together with the other information in the Prospectus, at the
date of the Prospectus, at the Closing time and at each Date of Delivery, if
any, did not and will not include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement and
the Prospectus are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
-4-
<PAGE> 5
(4) Financial Statements. The financial statements of the Guarantor
included in the Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements, schedules
and notes of any other entity included therein, present fairly the financial
position of the Company and its consolidated subsidiaries, or such other entity,
as the case may be, at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Guarantor and its consolidated
subsidiaries, or such other entity, as the case may be, for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any, included in
the Registration Statement and the Prospectus present fairly in accordance with
GAAP the information required to be stated therein. The selected financial data
and the summary financial information of the Company and the Guarantor included
in the Prospectus present fairly the information shown therein and, in the case
of the Guarantor, have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement and the
Prospectus. In addition, any pro forma financial statements of the Company and
its subsidiaries and the related notes thereto included in the Registration
Statement and the Prospectus present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Guarantor and its subsidiaries
considered as one enterprise (a "Material Adverse Effect"), whether or not
arising in the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, or the Guarantor or any
of its subsidiaries, other than those arising in the ordinary course of
business, which are, in each case, material with respect to the Company and its
subsidiaries considered as one enterprise or the Guarantor and its subsidiaries
considered as one enterprise, respectively, and (C) except for regular dividends
on the Company's and Guarantor's common stock or preferred stock, in amounts per
share that are consistent with past practice or the applicable charter document
or supplement thereto, respectively, there has been no dividend or distribution
of any kind declared, paid or made by the Company or the Guarantor on any class
of their respective capital stock.
-5-
<PAGE> 6
(6) Good Standing of the Guarantor. The Guarantor has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement and the applicable Terms
Agreement. The Guarantor is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing or
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant subsidiary" of the
Guarantor (as such term is defined in Rule 1-02 of Regulation S-X promulgated
under the 1933 Act) (each, including the Company, a "Subsidiary" and,
collectively, the "Subsidiaries"), has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and is validly issued, fully paid and
non-assessable and is owned by the Guarantor, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of capital stock of the
Subsidiaries was issued in violation of preemptive or other similar rights
arising by operation of law, under the charter or by-laws of any subsidiary or
under any agreement to which the Company or any subsidiary is a party, or
otherwise.
(8) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under such section.
Such shares of capital stock have been duly authorized and validly issued by the
Company and are fully paid and non-assessable, and none of such shares of
capital stock were issued in violation of preemptive or other similar rights
arising by operation of law, under the charter and by-laws of the Company or
under any agreement to which the Company or any of its subsidiaries is a party,
or otherwise.
-6-
<PAGE> 7
(9) Authorization of this Underwriting Agreement and Terms Agreement.
This Underwriting Agreement has been, and the applicable Terms Agreement as of
the date thereof will have been, duly authorized, executed and delivered by the
Company and the Guarantor.
(10) Authorization of Debt Securities and Guarantee. The Underwritten
Securities have been, or as of the date of the Terms Agreement will have been,
duly authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such Underwritten Securities,
when issued and authenticated in the manner provided for in the applicable
Indenture and delivered against payment of the consideration therefor specified
in such Terms Agreement, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, and except
further as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Debt Securities denominated other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or prohibit the
making of payments outside the United States. Such Underwritten Securities will
be in the form contemplated by, and each registered holder thereof is entitled
to the benefits of, the applicable Indenture. The Guarantee has been, or as of
the date of the Terms Agreement will have been, duly authorized by the
Guarantor. The Guarantee will constitute a valid and legally binding obligation
of the Guarantor, enforceable against the Guarantor in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles, and
except further enforcement thereof may be limited by (A) requirements that a
claim with respect to the guarantee of any Debt Securities denominated other
than in U.S. dollars (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(11) Authorization of the Indenture. The Indenture has been, or prior to
the issuance of the Debt Securities thereunder will have been, duly authorized,
executed and delivered by the Company and the Guarantor and, upon such
authorization, execution and delivery, will constitute a valid and legally
binding agreement of the Company and the Guarantor, enforceable against the
Company and the Guarantor in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other
-7-
<PAGE> 8
similar laws relating to or affecting creditors' rights generally or by general
equitable principles.
(12) Descriptions of the Underwritten Securities and Guarantee. The
Underwritten Securities and the Guarantee being sold pursuant to the applicable
Terms Agreement and the Indenture, as of the date of the Prospectus, will
conform in all material respects to the statements relating thereto contained in
the Prospectus and will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the Guarantor nor any of
the Subsidiaries is in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Guarantor
or any of the Subsidiaries is a party or by which or any of them may be bound,
or to which any of the property or assets of the Guarantor or any Subsidiary is
subject (collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement, the applicable Terms Agreement,
Indenture and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company or the Guarantor in connection with the
transactions contemplated hereby or thereby or in the Registration Statement and
the Prospectus and the consummation of the transactions contemplated herein and
in the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of Proceeds")
and compliance by the Company and the Guarantor with their respective
obligations hereunder and thereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any assets, properties or
operations of the Guarantor or any Subsidiary pursuant to any Agreements and
Instruments, except for such conflicts, breaches, defaults, events or liens,
charges or encumbrances that would not result in a Material Adverse Effect, nor
will such action result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Guarantor or any Subsidiary or any of their assets, properties or operations.
As used herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such
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<PAGE> 9
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Guarantor or any Subsidiary.
(14) Absence of Labor Dispute. No labor dispute with the employees of the
Guarantor or any Subsidiary exists or, to the knowledge of the Guarantor, is
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any Subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(15) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency or body,
domestic or foreign, now pending, or to the knowledge of the Company or the
Guarantor threatened, against or affecting the Guarantor or any subsidiary
thereof which is required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or which might reasonably be expected
to result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the assets, properties or operations thereof or
the consummation of this Underwriting Agreement, the applicable Terms Agreement
or the Indenture or the transactions contemplated herein or therein. The
aggregate of all pending legal or governmental proceedings to which the
Guarantor or any subsidiary thereof is a party or of which any of their
respective assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(16) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and/or filed as required.
(17) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
performance by the Company or the Guarantor of their respective obligations
under this Underwriting Agreement or the applicable Terms Agreement or in
connection with the transactions contemplated under this Underwriting Agreement,
such Terms Agreement or the Indenture, except such as have been already obtained
or as may be required under state securities laws.
(18) Possession of Intellectual Property. The Guarantor and the
Subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade
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<PAGE> 10
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names or
other intellectual property (collectively, "Intellectual Property") necessary to
carry on the business now operated by them, and neither the Guarantor nor any of
the Subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Guarantor or any of the Subsidiaries therein, and which infringement or conflict
(if the subject to any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(19) Possession of Licenses and Permits. The Guarantor and the
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them. The Guarantor and the Subsidiaries
are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect. All of the Governmental
Licenses are valid and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not result in a Material Adverse Effect. Neither
the Guarantor nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(20) Title to Property. The Guarantor and the Subsidiaries have good and
marketable title to all real property owned by the Guarantor and the
Subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except (A) as otherwise stated in the
Registration Statement and the Prospectus or (B) those which do not, singly or
in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Guarantor or any of the Subsidiaries. All of the leases and subleases material
to the business of the Guarantor and the Subsidiaries considered as one
enterprise, and under which the Guarantor or the Subsidiary holds properties
described in the Prospectus, are in full force and effect, and neither the
Guarantor nor any of Subsidiaries has received any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the
Guarantor or any Subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning
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<PAGE> 11
the rights of the Guarantor or such Subsidiary of the continued possession of
the leased or subleased premises under any such lease or sublease.
(21) Commodity Exchange Act. The Securities, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity Exchange
Act, as amended (the "Commodity Exchange Act"), and the rules and regulations of
the Commodity Futures Trading Commission under the Commodity Exchange Act (the
"Commodity Exchange Act Regulations").
(22) Investment Company Act. The Company and the Guarantor are not, and
upon the issuance and sale of the Underwritten Securities as herein contemplated
and the application of the net proceeds therefrom as described in the Prospectus
will not be, "investment companies" within the meaning of the Investment Company
Act of 1940, as amended (the "1940 Act").
(23) Environmental Laws. Except as otherwise stated in the Registration
Statement and the Prospectus and except such violations as would not, singly or
in the aggregate, result in a Material Adverse Effect (A) neither the Guarantor
nor any of the Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law and any judicial or administrative interpretation thereof including
any judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Guarantor and the Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Guarantor or any of the Subsidiaries, and (D)
there are no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Guarantor or any of the Subsidiaries relating to any Hazardous
Materials or the violation of any Environmental Laws.
(24) Compliance with Cuba Act. The Company and the Guarantor have
complied with, and are and will be in compliance with, the provisions of that
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certain Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder or are exempt therefrom.
(b) Officers' Certificates. Any certificate signed by any officer
of the Guarantor or any subsidiary and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Guarantor or
such subsidiary to each Underwriter as to the matters covered thereby on the
date of such certificate and, unless subsequently amended or supplemented, at
each Representation Date subsequent thereto.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
(b) Payment. Payment of the purchase price for, and delivery of,
the Underwritten Securities shall be made at the office of [INSERT NAME AND
ADDRESS], or at such other place as shall be agreed upon by the Underwriters and
the Company, at 10:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section 10
hereof), or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriters and the Company (such time and date of
payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by certified or official bank
check or checks drawn in same day funds payable to the order of the Company,
against delivery to the Underwriters of the Underwritten Securities to be
purchased by them.
(c) Denominations; Registration. The Underwritten Securities shall
be in such denominations and registered in such names as the Underwriters may
request in writing at least one full business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
will be made available for examination and packaging by the Underwriters in The
City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company and the Guarantor
covenant with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company and the Guarantor, subject to Section 3(b), will comply with
the
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<PAGE> 13
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the
1933 Act Regulations, if and as applicable, and will notify the
Representative(s) immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any supplement or amendment to the Prospectus, (ii) the receipt of
any comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Underwritten
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company and the
Guarantor will promptly effect the filings necessary pursuant to Rule 424 and
will take such steps as it deems necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company and the Guarantor will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company and the Guarantor will give the
Underwriters notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Underwriters with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Underwriters or
counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company and the Guarantor
have furnished or will deliver to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Underwriters,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. If applicable, the copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies
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thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company and the Guarantor will deliver
to each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter may reasonably request, and the Company and the
Guarantor hereby consent to the use of such copies for purposes permitted by the
1933 Act. The Company and the Guarantor will furnish to each Underwriter,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus as such Underwriter may reasonably request. If applicable, the
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the
Guarantor will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Underwritten Securities as contemplated in this Underwriting
Agreement and the applicable Terms Agreement and in the Registration Statement
and the Prospectus. If at any time when the Prospectus is required by the 1933
Act or the 1934 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company and
the Guarantor, to amend the Registration Statement in order that the
Registration Statement 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 or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company and the Guarantor will furnish to the Underwriters, without charge, such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company and the Guarantor will use its
best efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities and any related Underlying Securities for offering and sale under the
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<PAGE> 15
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as the Underwriters may designate and to maintain such qualifications
in effect for a period of not less than one year from the date of the applicable
Terms Agreement; provided, however, that neither the Company nor the Guarantor
shall be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities or any
related Underlying Securities have been so qualified, the Company and the
Guarantor will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Guarantor will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its security holders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing
of the Underwritten Securities and any related Underlying Securities, prior to
the Closing Time, on any national securities exchange or quotation system if and
as specified in the applicable Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time or such other date specified in
such Terms Agreement, the Company and the Guarantor will not, without the prior
written consent of the Underwriters, directly or indirectly, issue, sell, offer
to sell, grant any option for the sale of, or otherwise dispose of, the
Underwritten Securities specified in such Terms Agreement.
(k) Reporting Requirements. The Guarantor, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
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<PAGE> 16
SECTION 4. PAYMENT OF EXPENSES.
(a) Expenses. The Company and the Guarantor, jointly and severally,
will pay all expenses incident to the performance of their obligations under
this Underwriting Agreement or the applicable Terms Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any Terms Agreement, any Agreement among Underwriters,
the Indenture and such other documents as may be required in connection with the
offering, purchase, sale and delivery of the Underwritten Securities or any
related Underlying Securities, (iii) the preparation, issuance and delivery of
the Underwritten Securities and the Guarantee, or any certificates for the
Underwritten Securities or the Guarantee, as applicable, to the Underwriters,
(iv) the fees and disbursements of the Company's and Guarantor's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee and its
counsel, (v) the qualification of the Underwritten Securities and the Guarantee
under state securities laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey and any Legal
Investment Survey, and any amendment thereto, (vi) the printing and delivery to
the Underwriters of copies of each preliminary prospectus, any Term Sheet and
the Prospectus and any amendments or supplements thereto, (vii) the fees charged
by nationally recognized statistical rating organizations for the rating of the
Underwritten Securities, (viii) the fees and expenses incurred with respect to
the listing of the Underwritten Securities, (ix) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Underwritten
Securities, and (x) the fees and expenses of any Underwriter acting in the
capacity of a "qualified independent underwriter" (as defined in Rule
2720(b)(15) of the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company and the Guarantor, jointly and severally,
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase and pay for the Underwritten Securities pursuant
to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company and the Guarantor contained in
Section 1 hereof or in certificates of any officer of the Company and the
Guarantor or any of their subsidiaries delivered pursuant to the provisions
hereof, to the performance by the Company and the Guarantor of their respective
covenants and other obligations hereunder, and to the following further
conditions:
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<PAGE> 17
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
information relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933
Act Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company and Guarantor. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of outside counsel for the Company and Guarantor (which counsel shall be
acceptable to the Underwriters), in form and substance satisfactory to counsel
for the Underwriters, together with signed copies of such letter for each of the
Underwriters, to the effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of counsel for the Underwriters, together with signed copies of such
letter for each of the other Underwriters, with respect to the matters requested
by the Underwriters. In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the
Underwriters. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Guarantor and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Underwriters shall have received certificates from the Company and the
Guarantor, executed on their respective behalf by their respective President or
a
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<PAGE> 18
Vice President and the chief financial officer or chief accounting officer, in
each case dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in Section
1 are true and correct with the same force and effect as though expressly made
at and as of the Closing Time, (iii) the Company or the Guarantor, as
applicable, has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Underwriter shall have received from Ernst &
Young LLP a letter dated such date, in form and substance satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for each
of the Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Underwriters shall
have received from Ernst & Young LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Underwriters a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Underwriters, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in the
rating assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Underwritten Securities or any
of the Company's other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
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(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(j) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company and the
Guarantor in connection with the issuance and sale of the Underwritten
Securities as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(k) Termination of Terms Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement may be terminated by the
Underwriters by notice to the Company at any time at or prior to the
Closing Time (or such Date of Delivery, as applicable), and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6 and 7 shall
survive any such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) Indemnification of Underwriters. The Company and the Guarantor,
jointly and severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
-19-
<PAGE> 20
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company and the Guarantor; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission,or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above.
provided, however, that this indemnify agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto), including the 430A Information and the Rule 434 Information deemed to
be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Guarantor and Their Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Company, the Guarantor and their respective directors, officers who signed the
Registration Statement, and each person, if any, who controls the Company or the
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity
-20-
<PAGE> 21
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriters, and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Guarantor. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request; (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into; and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor, on the one hand, and the Underwriters, on the other
hand, from the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement; or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Guarantor, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
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<PAGE> 22
The relative benefits received by the Company and the Guarantor, on
the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Underwritten Securities (before deducting
expenses) received by the Company and the total underwriting discount received
by the Underwriters, in each case as set forth on the cover of the Prospectus,
or, if Rule 434 is used, the corresponding location on the Term Sheet bear to
the aggregate initial public offering price of such Underwritten Securities as
set forth on such cover.
The relative fault of the Company and the Guarantor, on the one hand,
and the Underwriters, on the other hand, 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 and the Guarantor or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Guarantor and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company or the Guarantor, each officer of the Company or
the Guarantor who signed the Registration Statement, and each person, if any,
who controls the Company or the Guarantor within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or the Guarantor, respectively. The Underwriters'
respective
-22-
<PAGE> 23
obligations to contribute pursuant to this Section 7 are several in proportion
to the number or aggregate principal amount, as the case may be, of
Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company or the Guarantor submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company and the Guarantor, and shall survive delivery of
and payment for the Underwritten Securities.
SECTION 9. TERMINATION.
(a) Underwriting Agreement. This Underwriting Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any time by
the Company, the Guarantor or by the Underwriters upon the giving of 30 days'
prior written notice of such termination to the other party hereto.
(b) Terms Agreement. The Underwriters may terminate the applicable
Terms Agreement, by notice to the Company and the Guarantor, at any time at or
prior to the Closing Time or any relevant Date of Delivery, if (i) there has
been, since the time of execution of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Guarantor and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if the Underwritten
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriters,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Guarantor has been suspended or limited by the Commission or the New York
Stock Exchange, or if trading generally on the New York Stock Exchange or
American Stock Exchange or in the over-the-counter market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities or, if the Underwritten Securities include Debt Securities
denominated or payable in, or indexed to, one or more foreign or composite
currencies, by the relevant authorities in the related foreign country or
countries.
-23-
<PAGE> 24
(c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6 and 7 shall survive
such termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or
more of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then the other Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, such other Underwriters shall
not have completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting obligations
of all non-defaulting Underwriters; or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement either the Underwriters or the
Company shall have the right to postpone the Closing Time or the relevant Date
of Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or the Prospectus
or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ____________________________, attention of
____________________; and notices to the
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<PAGE> 25
Company and the Guarantor shall be directed to the Guarantor at
____________________, attention of ____________________.
SECTION 12. PARTIES. This Underwriting Agreement and the applicable
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, the Guarantor and the Underwriters and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors. Nothing
expressed or mentioned in this Underwriting Agreement or such Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Guarantor and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Underwriting
Agreement or such Terms Agreement or any provision herein or therein contained.
This Underwriting Agreement and such Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Underwritten Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND
ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN,
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between Merrill Lynch and the Company in accordance with its terms.
Very truly yours,
ANIXTER INTERNATIONAL INC.
By:__________________________
Name:_____________________
Title:____________________
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<PAGE> 26
ANIXTER INC.
By:_________________________
Name:____________________
Title:___________________
CONFIRMED AND ACCEPTED, as of
the date first above written:
[NAME(S) OF UNDERWRITER OR REPRESENTATIVES]
By: ______________________________
Authorized Signatory
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<PAGE> 27
------------
EXHIBIT A
------------
ANIXTER INC.
ANIXTER INTERNATIONAL INC.
DEBT SECURITIES
TERMS AGREEMENT
[Date]
To: Anixter Inc.
4711 Golf Road
Skokie, Illinois 60076
Anixter International Inc.
2 North Riverside Plaza
Suite 1900
Chicago, Illinois 60606
Ladies and Gentlemen:
We understand that Anixter Inc., a Delaware corporation (the
"Company"), proposes to issue and sell, and Anixter International Inc. (the
"Guarantor") desires to unconditionally guarantee as to payment of principal of
premium (if any) and interest on, $_______ aggregate principal amount of the
Company's debt securities (the "Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, the underwriters
named below (the "Underwriters") offer to purchase, severally and not jointly,
the principal amount of Underwritten Securities opposite their names set forth
below at the purchase price set forth below.
A-1
<PAGE> 28
[Principal Amount]
of Underwritten Securities
Underwriter
Total [$]
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Listing requirements:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: __% of the
principal amount, plus accrued interest [amortized original issue discount],
if any, from ____________________
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _______________ (payable
in next day funds).
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "Underwriting Agreement" are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this Terms Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
A-2
<PAGE> 29
Please accept this offer no later than __:__ o'clock P.M. (New York
City time) on ____________, 19__ by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
[NAME(S) OF UNDERWRITER
OR REPRESENTATIVES]
By: _________________________________
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
ANIXTER INTERNATIONAL INC.
By: ______________________
Name:_________________
Title:________________
ANIXTER INC.
By: ______________________
Name:_________________
Title:________________
A-3
<PAGE> 1
_____________
F&L DRAFT
JULY 25, 1996
_____________
EXHIBIT 4.1
________________________________________________________________________________
ANIXTER INC.
the Company,
ANIXTER INTERNATIONAL INC.
the Guarantor
AND
THE BANK OF NEW YORK
the Trustee
_____
INDENTURE
Dated as of , 1996
_____
________________________________________________________________________________
<PAGE> 2
CROSS REFERENCE TABLE*
<TABLE>
<CAPTION>
TIA SECTION INDENTURE SECTION
----------- -----------------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . 608
(c) . . . . . . . . . . . . . . . . . . . . . N.A.
Section 311(a) . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . N.A.
Section 312(a) . . . . . . . . . . . . . . . . . . . . . 701;702
(b) . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a) . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . 102
(d) . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . N.A.
Section 315(a) . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) (last sentence) . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
__________________________________
* This table shall not be deemed a part of the Indenture.
N.A. means not applicable.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 104. Acts of Holders; Record Dates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 105. Notices, Etc., to Trustee, Company and Guarantor. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 107. Language of Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 108. Applicability of Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 109. Effect of Headings and Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 110. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 111. Separability Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 114. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 115. Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 202. Securities in Global Form. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 203. Form of Trustee's Certificate of Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 307. Payment of Principal and Interest; Interest Rights Preserved. . . . . . . . . . . . . . . . . . . . . 28
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 311. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
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SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . 36
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . . . . 37
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . . . . . 38
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 604. Not Responsible for Recitals or Issuance of Securities. . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 608. Disqualification; Conflicting Interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . 53
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SECTION 613. Preferential Collection of Claims Against Company. . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 614. Compliance with Tax Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 615. Appointment of Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 701. Company and Guarantor to Furnish Trustee Names and Addresses of Holders. . . . . . . . . . . . . . . 59
SECTION 702. Preservation of Information; Communications to Holders. . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 704. Reports by Company and the Guarantor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR TRANSFER
SECTION 801. Consolidations, Mergers and Sales Permitted Subject to Certain Conditions. . . . . . . . . . . . . . 62
SECTION 802. Rights and Duties of Successor Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 803. Officers' Certificate and Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 903. Execution of Supplemental Indentures; Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 906. Reference in Securities to Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1003. Money for Securities Payments To Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1004. Statement by Officers as to Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1005. Restriction on Creation of Secured Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1006. Restriction on Sale and Leaseback Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1007. Restriction on Transfer of Principal Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1008. Restriction on Senior Funded Debt by Restricted Subsidiaries of Company . . . . . . . . . . . . . . . 73
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SECTION 1009. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1010. Redemption at the Option of the Holders in Certain Circumstances. . . . . . . . . . . . . . . . . . . 73
SECTION 1011. Calculation of Original Issue Discount. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of this Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect Defeasance . . . . . . . . . . . . . . . . . . . 81
SECTION 1302. Defeasance and Discharge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1304. Conditions of Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous . . . . . . . . . 84
SECTION 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
SECTION 1401. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1402. Notice of Repurchase Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1403. Deposit of Repurchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1404. Securities Payable on Repurchase Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1405. Securities Repurchased in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
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ARTICLE FIFTEEN
GUARANTEE AND SUBORDINATION
SECTION 1501. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1502. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Securities in Foreign Currencies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE SEVENTEEN
CORPORATE OBLIGATION ONLY
SECTION 1701. Indenture and Securities Solely Corporate Obligations . . . . . . . . . . . . . . . . . . . . . . . . 88
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INDENTURE
INDENTURE, dated as of , 1996, by and among ANIXTER
INC., a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), ANIXTER INTERNATIONAL INC., a corporation duly
organized and existing under the laws of the State of Delaware and the parent
corporation of the Company (the "Guarantor"), and THE BANK OF NEW YORK, a New
York banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series unlimited as to principal
amount, to bear such rates of interest, to mature at such times and to have
such other provisions as in this Indenture provided.
B. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
RECITALS OF THE GUARANTOR
A. The Company is a direct subsidiary of the Guarantor
and the Guarantor desires to make the Guarantee provided for herein.
B. All things necessary to make this Indenture a valid
agreement of the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in order to declare the terms and conditions upon which
the Securities are authenticated, issued and delivered, and in consideration of
the premises and the purchase of the Securities by the Holders (as defined
herein) thereof, the Company, the Guarantor and the Trustee covenant and agree
with each other, for the benefit of all Holders from time to time of the
Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
For all purposes of this Indenture and of any supplemental
indenture hereto, except as otherwise expressly provided or unless the context
otherwise requires:
<PAGE> 9
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act (as defined herein), either directly or by
reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
GAAP;
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision;
(5) the word "or" is not exclusive;
(6) the word "including" means including without
limitation; and
(7) words in the singular include the plural and words in
the plural include the singular.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the 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 that 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" means any Person authorized by the
Trustee pursuant to Section 615 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the applicable city or country.
Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers
meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
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<PAGE> 10
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee thereof and, with respect to the
Guarantor, either the board of directors of the Guarantor or any duly
authorized committee thereof.
"Board Resolution" means a copy of a resolution delivered to
the Trustee that is certified by the Secretary or an Assistant Secretary of the
Company or the Secretary or an Assistant Secretary of the Guarantor to have
been duly adopted by the applicable Board of Directors and to be in full force
and effect on the date of such certification.
"Business Day" when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in the Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the United States Securities
Exchange Act of 1934, or if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order delivered to the Trustee that is signed in the name of the Company by
its Chairman of the Board, its President or any Vice President, and by its
Treasurer, any Assistant Treasurer, its Controller, any Assistant Controller,
its Secretary or any Assistant Secretary.
"Consolidated Net Tangible Assets" means, in each case, with
respect to the Guarantor (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 (including
redeemable preferred 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
expenses incurred in the issuance of debt, and other like intangibles which, in
each case, under generally accepted accounting principles in effect on the date
of the Indenture would be included on a consolidated balance sheet of the
Guarantor and its Restricted Subsidiaries, less (b) loans, advances, equity
investments and guarantees (other than accounts receivable arising from the
sale of merchandise in the ordinary course of business) at the time outstanding
that were made or incurred by the Guarantor and its Restricted Subsidiaries to,
in or for Unrestricted Subsidiaries or to, in or for corporations while they
were Restricted Subsidiaries and which at the time of computation are
Unrestricted Subsidiaries.
"Continuing Director" means an individual who is a member of
the Board of Directors on the date of this Indenture or who shall have become a
member of the Board of Directors subsequent to such date and who shall have
been nominated or elected by a majority of the other
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<PAGE> 11
Continuing Directors then members of the Board of Directors or by a committee a
majority of whose members are Continuing Directors.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which
this Indenture is dated, located at 101 Barclay Street, Floor 21 West, New
York, New York 10286.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Current Market Price" means, with respect to any security on
any date, the last sale price, regular way, or, in case no such sale takes
place on such date, the average of the closing bid and asked prices, regular
way, for such security, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange, Inc. or, if such security
is not then listed or admitted to trading on the New York Stock Exchange, Inc.,
as reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on
which such security is listed or admitted to trading or, if such security is
not then listed or admitted to trading on any national securities exchange, on
the NASDAQ National Market System or, if such security is not then quoted on
such National Market System, the average of the closing bid and asked prices
for such security in the over-the-counter market, as reported by NASDAQ or such
other system then in use, or, if on any such date such security is not then
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market-maker then making a market in such
security selected by the Board of Directors; provided, however, that if on any
such date such security is not listed or admitted to trading on a national
securities exchange or traded in the over-the-counter market, the "Current
Market Price" of such security on such date shall mean the fair value thereof
on such date as determined in good faith by the Board of Directors.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301.
"Direction" has the meaning specified in Section 104(c).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Event of Default" has the meaning specified in Section 501.
"Fair Market Value" means (i) as to securities which are
publicly traded, the average of the Current Market Prices of such securities
for each day during the period of 10 consecutive trading days immediately
preceding the date of determination and (ii) as to securities which are not
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<PAGE> 12
publicly traded or any other property, the fair value thereof as determined in
good faith by the Board of Directors.
"Funded Debt" means all indebtedness for borrowed money having
a maturity of more than 12 months from the date as of which the amount thereof
is to be determined.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession in the United States.
"Global Security" means a Security evidencing all or part of a
series of Securities, issued to the Depositary for such series or its nominee,
and registered in the name of such Depositary or nominee.
"Global Security Registered Owner" has the meaning given it in
Section 305.
"Guarantee" means the guarantee of the Guarantor set forth in
Section 1501.
"Guarantor" means the Person named as the "Guarantor" in the
first paragraph of this Indenture until a successor corporation shall become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor corporation.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
The term "Indenture" shall also include the terms of particular series of
Securities established as contemplated by Section 301, whether or not a
supplemental indenture is entered into with respect thereto.
"Interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, occurrence of
any Repurchase Date or otherwise.
"National Rating Agency" means any of the following nationally
recognized statistical rating organizations (and, in each case, any successor
thereto): Duff & Phelps Credit Rating Co.;
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<PAGE> 13
Moody's Investors Service, Inc.; Standard & Poor's Corporation; and Fitch
Investors Service, L.P.
"Officers' Certificate" means a certificate delivered to the
Trustee that is signed by the Company's Chairman of the Board, its President or
any Vice President, and by its Treasurer, any Assistant Treasurer, its
Controller, any Assistant Controller, its Secretary or any Assistant Secretary.
"Opinion of Counsel" means a written opinion of counsel from
counsel for the Company or the Guarantor (who may be an employee of the Company
or the Guarantor), or outside counsel for the Company or the Guarantor.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to any series of
Securities, means, as of the date of determination, all Securities of that
series which are authenticated and delivered under this Indenture, except:
(i) Securities of that series previously canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities of that series for whose payment or
redemption money in the necessary amount has been previously 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 Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities of that series which have been paid
pursuant to Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(A) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon acceleration
of the Maturity thereof pursuant to Section 502, (B) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided for such
Security on the date of original issuance thereof, as contemplated by Section
301, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the date
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<PAGE> 14
of original issuance of such Security of the amount determined as provided in
(A) above) of such Security, and (C) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee actually knows to be so owned shall be so
disregarded. Notwithstanding the foregoing clause (C), Securities so owned by
the Company, such obligor, or such Affiliate that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities so long as the pledgee is not the Company or any other obligor upon
the Securities or an Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium (if any), or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or any other entity or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to the Securities
of any series, means such city or political subdivision thereof where the
principal of, premium (if any), and interest on the Securities of that series
are payable as specified for such Securities as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Principal Facility" means any land, building, machinery or
equipment, or leasehold interests and improvements in respect of the foregoing,
owned, on the date of the Indenture or thereafter, by the Guarantor, the
Company or a Restricted Subsidiary, which 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 one percent of the Consolidated Net
Tangible Assets, other than any such land, building, machinery or equipment, or
leasehold interests and improvements in respect of the foregoing which, in the
opinion of the Board of Directors of the Guarantor (evidenced by a Board
Resolution), is not of material importance to the business conducted by the
Guarantor and its Subsidiaries taken as a whole.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
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"Registered Security" means any Security established pursuant
to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the fifteenth day (whether
or not a Business Day) next preceding such Interest Payment Date or such other
date with respect to Securities of any series specified as contemplated by
Section 301.
"Repurchase Date," when used with respect to any Security of
any series to be repurchased, means the date, if any, fixed for such repurchase
pursuant to Section 301.
"Repurchase Price," when used with respect to any Security of
any series to be repurchased, means the price, if any, at which such Security
is to be repurchased pursuant to Section 301.
"Responsible Officer," when used with respect to the Trustee,
means the Chairman of the Board of Directors, the President, any Vice
President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred at the Trustee's Corporate Trust Office because of that person's
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means (a) any Subsidiary other than
an Unrestricted Subsidiary and (b) any Subsidiary that was an Unrestricted
Subsidiary but which, subsequent to the date of the Indenture, is designated by
the Guarantor and the Company (evidenced by a resolution of their respective
Boards of Directors) to be a Restricted Subsidiary; provided, however, that the
Guarantor and the Company may not designate any such Subsidiary to be a
Restricted Subsidiary if the Guarantor or the Company would thereby breach any
covenant or agreement contained herein (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 Senior Funded 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).
"Restructuring Event" means any of the following: (1) any
Persons other than the Guarantor becoming the beneficial owners, in the
aggregate, of Voting Stock of the Company having more than 30 percent of the
voting power of all the then outstanding Voting Stock of the Company; (2) any
person becoming the beneficial owner of Voting Stock of the Guarantor having
more than 30 percent of the voting power of all of the then outstanding Voting
Stock of the Guarantor, other than Affiliates of Samuel Zell or Ann Lurie or
their respective heirs or beneficiaries; (3) individuals who are not Continuing
Directors, constituting a majority of the Board of Directors of the Guarantor;
(4) the Company or the Guarantor consolidating with or merging into any other
person (other than the Company consolidating or merging with the Guarantor), or
any other person consolidating with or merging into the Company or the
Guarantor, pursuant to a transaction in which capital stock of the Company or
the Guarantor then outstanding (other than capital stock held by the Guarantor
or capital stock held by any person which is a party to such consolidation or
merger) is changed or
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exchanged other than solely in connection with a change of the state of
incorporation of the Guarantor or the Company to another state of the United
States or the District of Columbia; (5) the Company, in one transaction or a
series or related transactions, conveying, transferring or leasing, directly or
indirectly, all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole (other than to a wholly owned Restricted
Subsidiary of the Company); or (6) the Guarantor or any of its Subsidiaries
(including the Company) paying or affecting a dividend or distribution
(including by way of recapitalization or reclassification) in respect of its
capital stock (other than solely to the Guarantor or any of its wholly owned
Subsidiaries or other than solely for capital stock of the Guarantor), or
purchasing, redeeming, retiring, exchanging or otherwise acquiring for value
any of its capital stock (other than solely from the Guarantor or any of its
wholly owned subsidiaries or other than solely for capital stock of the
Guarantor or the Company), if the cash and fair market value of the securities
and assets paid or distributed (except to the Guarantor or any Subsidiary) in
connection therewith (determined on the record date for such dividend or
distribution or the effective date for such purchase, redemption, retirement,
exchange or other acquisition), together with the cash and fair market value of
the securities and assets paid or distributed in connection with all other such
dividends, distributions, purchases, redemptions, retirements, exchanges and
acquisitions effected (except as received by the Guarantor or any Subsidiary)
within the 12-month period preceding the record date for such dividend or
distribution or the effective date for such purchase, redemption, retirement,
exchange or other acquisition (any such fair market value being determined on
the respective record or effective dates for such other dividends,
distributions, purchases, redemptions, retirements, exchanges and
acquisitions), exceeds 30 percent of the aggregate Fair Market Value of all
capital stock of the Guarantor outstanding on the record date for such dividend
or distribution or the effective date of such purchase, redemption, retirement,
exchange or other acquisition (determined on such record or effective date).
"Sale and Leaseback Transaction" means any sale or transfer
made by the Guarantor, the Company or one or more Restricted Subsidiaries
(except a sale or transfer made to the Guarantor, the Company or one or more
Restricted Subsidiaries) of any Principal Facility that (in the case of a
Principal Facility which is a building or equipment) has been in operation, use
or commercial production (exclusive of test and start-up periods) by the
Guarantor, the Company or any Restricted Subsidiary for more than 180 days
prior to such sale or transfer, or that (in the case of a Principal Facility
that is a parcel of real property not containing a building) has been owned by
the Guarantor, the Company or any Restricted Subsidiary for more than 180 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 Guarantor, 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 Guarantor, the Company or
such Restricted Subsidiary will be discontinued on or before the expiration of
such period); provided, however, that the creation of any Secured Debt
permitted under Section 1005 shall not be deemed to create or be considered a
Sale and Leaseback Transaction.
"Secured Debt" means any indebtedness for money borrowed by,
or evidenced by a note or other similar instrument of, the Guarantor, the
Company or a Restricted Subsidiary, and any other indebtedness of the
Guarantor, 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 (other
than indebtedness owed by a
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<PAGE> 17
Restricted Subsidiary to the Guarantor or the Company, or by a Restricted
Subsidiary to another Restricted Subsidiary, or by the Guarantor or the Company
to a Restricted Subsidiary), which in any case is secured by (a) a Security
Interest in any property or assets of the Guarantor, the Company or any
Restricted Subsidiary, or (b) a Security Interest in any shares of stock owned
directly or indirectly by the Guarantor or the Company in a Restricted
Subsidiary or in indebtedness for money borrowed by a Restricted Subsidiary
from the Guarantor, 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 aggregate amount then owing
thereon by the Guarantor, the Company and the Restricted Subsidiaries.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities of any series
authenticated and delivered under this Indenture, including any coupons
attached thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interest" means any mortgage, pledge, lien,
encumbrance or other security interest which secures payment or performance of
an obligation.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Funded Debt" means any obligation of the Guarantor,
the Company or any Restricted Subsidiary which constituted Funded Debt as of
the date of its creation and that, in the case of such Funded Debt of the
Guarantor and the Company is not subordinate and junior in right of payment to
the prior payment of the Securities.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation, association, partnership or
other entity of which more than 50% of the outstanding Voting Stock is owned,
directly or indirectly, by the Guarantor, the Company or by one or more other
Subsidiaries, or by the Guarantor, the Company and one or more other
Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument is qualified (to the extent
required by law) under such act, except as provided by Section 905.
"United States" means the United States of America (including
the States and the District of Columbia), its territories and possessions and
other areas subject to its jurisdiction.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after the date of the applicable Indenture, 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, (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 Guarantor, the Company or a Subsidiary, including
without limitation Signal Capital Corporation and its Subsidiaries, (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. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
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, and shall
also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"Vice President" when used with respect to the Trustee means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president," and when used with respect to
the Company means any vice president who is an officer of the Company, whether
or not designated by a number or word or words before such title.
"Voting Stock" means securities of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation,
association, partnership or other entity (irrespective of whether or not at the
time securities of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
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SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, 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, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(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 each such
individual, he or she has made such examination or investigation as is
necessary to enable him or her 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, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which such officer's certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters or information which is in the possession of the Company, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. Any Opinion of
Counsel may be stated to be based on the opinion of other counsel, in which
event it shall be accompanied by a copy of such other opinion.
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Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is expressly hereby required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her the
execution thereof. Where such execution is by an officer of a corporation or a
member of a partnership, acting on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of such
officer's authority. Notwithstanding the foregoing, the fact and date of the
execution of any such instrument or writing, and the authority of the Person
executing the same, may also be proved in any other manner that the Trustee
deems sufficient.
(c) Except as provided in the next paragraph of this
Subsection (c) or as specifically provided otherwise pursuant to Section 301
with respect to any series of Securities, the Company may set any day as the
record date for the purpose of determining the Holders of Securities of any
series entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized
or permitted to be given or taken by Holders of Securities of such series.
With regard to any record date set pursuant to this Subsection (c), the Holders
of Outstanding Securities of the relevant series on such record date (or their
duly appointed agents), and only such Persons, shall be entitled to give or
take the relevant action, whether or not such Holders remain Holders after such
record date. With regard to any action that may be given or taken hereunder
only by Holders of a requisite principal amount of Outstanding Securities of
any series (or their duly appointed agents) and for which a record date is set
pursuant
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to this Subsection (c), the Company may, at its option, set an expiration date
after which no such action purported to be given or taken by any Holder shall
be effective hereunder unless given or taken on or prior to such expiration
date by Holders of the requisite principal amounts of Outstanding Securities of
such series on such record date (or their duly appointed agents). On or prior
to any expiration date set pursuant to this Subsection (c), the Company may, on
one or more occasions at its option, extend such date to any later date.
Nothing in this Subsection (c) shall prevent any Holder (or any duly appointed
agent thereof) from giving or taking, after any expiration date, any action
identical to, or, at any time, contrary to or different from any action given
or taken, or purported to have been given or taken, hereunder by a Holder on or
prior to such date, in which event the Company may set a record date in respect
hereof pursuant to this Subsection (c).
Notwithstanding the foregoing, upon receipt by the Trustee,
with respect to Securities of any series, of (i) any Notice of Default pursuant
to Section 502, (ii) any declaration of acceleration, or any rescission and
annulment of any such declaration pursuant to Section 502, or (iii) any
direction given pursuant to Section 512 (any such notice, declaration,
rescission and annulment, or direction being referred to herein as a
"Direction"), a record date shall automatically and without any other action by
any Person be set for the purpose of determining the Holders of Outstanding
Securities of such series entitled to join in such Direction, which record date
shall be the close of business on the day the Trustee receives such Direction.
The Holders of Outstanding Securities of such series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to join
in such Direction, whether or not such Holders remain Holders after such record
date; provided that, unless such Direction shall have become effective by
virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having
joined therein on or prior to the 90th day after such record date, such
Direction shall automatically and without any action by any Person be canceled
and be of no further effect. Nothing in this paragraph shall prevent a Holder
(or a duly appointed agent thereof) from giving, before or after the expiration
of such 90-day period, a Direction contrary to or different from, or, after the
expiration of such period, identical to, a Direction that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date in respect thereof shall be set pursuant to this Subsection (c).
(d) The ownership of Registered Securities shall be
proved by the Security Register.
(e) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary reasonably
acceptable to the Company, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4) such
Bearer Security is no longer
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<PAGE> 22
Outstanding. The principal amount and serial numbers of Bearer Securities held
by the Person so executing such instrument or writing and the date of holding
the same may also be proved in any other manner which the Trustee deems
sufficient.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange thereof or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent, or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND GUARANTOR.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or at such other
address as previously furnished in writing to the Holders and the
Company by the Trustee for such purpose, or
(2) the Company or the Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
registered or certified mail postage prepaid, in the case of the
Company, to the Company addressed to it at 4711 Golf Road, Skokie,
Illinois 60076, Attn: Secretary, or at such other address as
previously furnished in writing to the Trustee by the Company for such
purpose and, in the case of the Guarantor, to the Guarantor addressed
to it at 2 North Riverside Plaza, Suite 1900, Chicago, Illinois 60606,
Attn: Secretary, or at such other address as previously furnished in
writing to the Trustee by the Guarantor for such purpose.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Except as otherwise provided in any supplemental indenture
with respect to Holders of Securities of any series issued pursuant to such
supplemental indenture, where this Indenture provides for notice to Holders of
any event:
(1) such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-
class postage prepaid, to each Holder of the Registered Securities
affected by such event, at such Holder's address as it appears in the
Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of
such notice, and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and if the Securities of
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such series are then listed on any stock exchange outside the United
States, in an Authorized Newspaper in such city as the Company shall
advise the Trustee that such stock exchange so requires, on a Business
Day at least twice, the first such publication to be not earlier than
the earliest date and not later than the latest date prescribed for
the giving of such notice.
In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed to the Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice. In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holder of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither failure to give
notice by publication to Holders of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of any
notice mailed to Holders or Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this Indenture shall be
in the English language, except that, if the Company so elects, any published
notice may be in an official language of the country of publication.
SECTION 108. APPLICABILITY OF TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control.
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SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company,
the Guarantor and the Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
of any series shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent, and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict of laws principals thereof.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date, sinking fund payment date or Stated Maturity or Maturity of
any Security of any series or any date by which any report or other information
is due pursuant to any provision of this Indenture shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or such Securities)
payment of interest or principal (and premium, if any) or delivery of such
report or information need not be made on or by such date, but may be made on
the next succeeding Business Day with the same force and effect (a) with
respect to any payment, as if made on the Interest Payment Date, Repurchase
Date or Redemption Date, sinking fund payment date or at the Stated Maturity or
Maturity, and (b) with respect to any such report or other information, as if
delivered by the stated due date. No interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, Repurchase Date, sinking
fund payment date or Stated Maturity or Maturity, as the case may be, to such
next succeeding Business Day.
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SECTION 115. EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the
form as shall be established without the approval of any Holders by or pursuant
to one or more Board Resolutions in accordance with Section 301 or in one or
more indentures supplemental hereto, in each case, including without limitation
such appropriate legends, insertions, omissions, substitutions and other
variations as are required or are not prohibited by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as necessary or
appropriate to comply with any law or with any rule or regulation made pursuant
thereto or with any rules or regulations of any securities exchange on which
such series of Securities may be listed, or to conform to general usage, or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202. SECURITIES IN GLOBAL FORM.
If Securities of a series are Global Securities, any such
Global Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also provide
that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount or
changes in the rights of Holders of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons as shall be
specified therein. Any instructions by the Company with respect to a Global
Security shall be in writing but need not comply with Section 102.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series shall be
issuable in registered form without coupons. If so provided as contemplated by
Section 301, the Securities of a series shall also be issuable in bearer form,
with or without interest coupons attached.
The definitive Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
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SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[TRUSTEE],
as Trustee
By: _________________________________
Authorized Signatory
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities of all series
which may be issued, executed, authenticated, delivered and Outstanding under
this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established, without the approval of any Holders, by or pursuant to
authority granted by one or more Board Resolutions and, subject to Section 303,
there shall be set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable:
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities of the series
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 906, 1010, 1107 or 1405 and except for any
Securities of the series which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) if other than the Trustee, the identity of each
Security Registrar and Paying Agent;
(4) the date or dates, or the method by which such date
or dates are determined or extended, on which the principal and
premium (if any) of the Securities of the series shall be payable;
(5) the rate or rates (which may be fixed or variable) at
which the Securities of the series shall bear interest, or the method
by which such rates will be determined, if any, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable, or the method by which such date
will be determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve thirty-day
months;
(6) if other than the fifteenth day next preceding an
Interest Payment Date, the Regular Record Date with respect to an
Interest Payment Date;
(7) the place or places, if any, other than or in
addition to the Corporate Trust Office, where the principal of,
premium (if any), and interest on Securities of the series shall be
payable;
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(8) the period or periods within which, the price or
prices at which, and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have such option;
(9) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which, and
the terms and conditions upon which Securities of the series shall be
redeemed, repaid, or purchased, in whole or in part, pursuant to such
obligation;
(10) if other than denominations of $1,000 and integral
multiples thereof, the denominations in which Securities of the series
shall be issuable;
(11) if other than the currency of the United States of
America, the currency, currencies or currency units in which payment
of the principal, premium (if any), and interest on any Securities of
the series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 101;
(12) if the amount of payments of principal of, premium
(if any), or interest on any Securities of the series may be
determined with reference to an index, the manner in which such
amounts shall be determined;
(13) if the principal of, premium (if any), or interest on
any Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which
payment of the principal of, premium (if any), and interest on
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions
upon which such election is to be made;
(14) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or provable in bankruptcy pursuant to
Sections 503 and 504;
(15) the application, if any, of either or both of Section
302 and Section 1303 to the Securities of the series;
(16) any addition to or change in the Events of Default
with respect to the Securities of the series and any change in the
right of the Trustee or the Holders to declare the principal of,
premium (if any), and interest on, such Securities due and payable;
(17) any addition to or change in the covenants and
definitions currently set forth in this Indenture or in the terms
currently set forth in Article Eight or Article Ten;
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(18) whether Securities of the series shall be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both; any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms, if any, upon which Bearer Securities
of the series may be exchanged for Registered Securities of the series
and vice versa;
(19) if and as applicable, that the Securities of the
series shall be issuable in whole or in part in the form of one or
more Global Securities and, in such case, the Depositary or
Depositaries for such Global Security or Global Securities and any
circumstances other than those set forth in Section 305 in which any
such Global Security may be transferred to, and registered and
exchanged for Securities of the series registered in the name of, a
Person other than the Depositary for such Global Security or nominee
thereof, and in which any such transfer may be registered; and
(20) any other terms of the series (which terms shall not
be prohibited by the provisions of this Indenture, except as permitted
by Section 901(4)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time. Unless
otherwise provided, Securities within a single series may have different terms
and a series may be reopened, without the consent of the Holders, for issuance
of additional Securities of such series.
If any of the terms of the series are established by action
taken by or pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or any Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. DENOMINATIONS.
Unless otherwise specified pursuant to Section 301, the
Securities of each series shall be issuable in registered form without coupons.
In the absence of any contrary provisions with respect to the Securities of any
series pursuant to Section 301, the Registered Securities of such series shall
be issuable in denominations of $1,000 and any integral multiple of $1,000, and
the Bearer Securities of such series, if any, shall be issuable in the
denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President, any of its Vice Presidents, the
Treasurer or any Assistant Treasurer and attested by its Secretary or any of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who, at the time such manual or facsimile signatures were affixed
to such Securities, were properly serving as such
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officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and make
available for delivery such Securities as provided in this Indenture. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon,
(a) a copy of any Board Resolution;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel stating:
(1) if the form of such Securities has been
established by or pursuant to one or more Board Resolutions as
permitted by Section 201, that such form has been established
in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been
established by or pursuant to one or more Board Resolutions as
permitted by Section 301, that such terms have been
established in conformity with the provisions of this
Indenture; and
(3) that such Securities have been duly
authorized and, when executed, authenticated, issued and
delivered in accordance with the terms of this Indenture, and
assuming due authentication thereof by the Trustee, and when
such Securities are delivered and paid for by the purchaser
thereof, will constitute valid and legally binding obligations
of the Company enforceable against the Company in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance or transfer, reorganization, moratorium
and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
provided, however, that such Opinion of Counsel need express
no opinion as to whether a court in the United States would
render a money judgment in a currency other than that of the
United States.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under such Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
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Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of any series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or a Company Order or an
Opinion of Counsel otherwise required pursuant to such preceding paragraph at
or prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated and issued as of the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee or its Authenticating Agent by
manual signature, and such certificate upon any such Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
such Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary Securities of that
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities of that series in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in the form of Global Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable, subject
to Section 305 hereof, for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of the
Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
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SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company may act as, or may appoint an agent or the Trustee
to act as, the depository for the safekeeping of certificated Securities,
issuing agent of the Securities and registrar for the registration of
Registered Securities and transfers of Registered Securities (the "Security
Registrar") pursuant to Section 301. The Company shall cause to be kept a
register (the register maintained by the Trustee, any agent or in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and transfers of Registered Securities.
Unless the Company or another agent is designated as the Security Registrar
with respect to any series of Registered Securities pursuant to Section 301,
the Trustee is hereby appointed "Security Registrar" of each series of
Registered Securities for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided
at the Corporate Trust Office.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor
bearing a number not contemporaneously outstanding. No Registered Security to
be issued upon exchange of an Outstanding Security shall be issued in a
denomination less than $1,000 unless otherwise specified pursuant to Section
301.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination or denominations and of a like aggregate principal
amount and denomination or tenor, upon surrender of such Registered Securities
to be exchanged at such office or agency, and upon payment of any taxes or
governmental charges as hereinafter provided. Whenever any such Registered
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Registered
Securities which the Holder making the exchange is entitled to receive.
All Registered Securities of any series issued upon any
registration of transfer or exchange of Registered Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Registered Securities of the same
series surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or such Holder's attorney duly authorized in
writing.
If so provided with respect to Securities of a series, at the
option of the Holder, Bearer Securities of any such series may be exchanged for
Registered Securities of the same series containing identical terms and
provisions, of any authorized denominations and aggregate principal
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amount, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as
otherwise provided in Section 1002, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date of payment, as
the case may be (or, if such coupon is so surrendered with such Bearer
Security, such coupon shall be returned to the person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
If expressly provided with respect to the Securities of any
series, at the option of the Holder, Registered Securities of such series may
be exchanged for Bearer Securities upon such terms and conditions as may be
provided with respect to such series.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is entitled
to receive.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company or the Trustee shall
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of such Securities, other than exchanges pursuant to Section 304, 906,
1010, 1107 or 1405 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange Securities of any series during a period beginning at
the opening of business 15 days before any selection of Securities of that
series to be redeemed and ending at the close of business on the day of the
mailing of a notice of redemption of Securities of that series selected for
redemption under Section 1104; or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any such Security being redeemed in part; or
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(iii) to register the transfer of or exchange any Security during a period
beginning five days before the date of Maturity with respect to such Securities
and ending on such date of Maturity.
Notwithstanding the foregoing and except as otherwise
specified or contemplated by Section 301, no Global Security shall be
exchangeable pursuant to this Section 305 or Sections 304, 906, 1010, 1107 and
1405 for Securities registered in the name of, and no transfer of a Global
Security of any series may be registered to, any Person other than the
Depositary for such Security or its nominee unless (1) such Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if the Company determines that the Depositary is unable to
continue as Depositary and the Company thereupon fails to appoint a successor
Depositary; (2) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be so exchangeable and the transfer
thereof so registerable; (3) the Company provides for such exchange pursuant to
Section 301; or (4) there shall have occurred and be continuing an Event of
Default, or an event which after notice or lapse of time would be an Event of
Default, with respect to the Securities evidenced by such Global Security.
Upon the occurrence in respect of any Global Security of any series of any one
or more of the conditions specified in clauses (1), (2), (3) or (4) of the
preceding sentence or such other conditions as may be specified as contemplated
by Section 301 for such series, such Global Security may be exchanged for
Securities of the same series registered in the names of, and the transfer of
such Global Security may be registered to, such Persons (including Persons
other than the Depositary with respect to such series and its nominees) as such
Depositary shall direct. Notwithstanding any other provisions of this
Indenture, any Security of any series authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global
Security of that series shall also be a Global Security and shall bear the
legend specified in the Officers' Certificate or supplemental indenture
specified in Section 201 except for any Security of that series authenticated
and delivered in exchange for, or upon registration of transfer of, a Global
Security pursuant to the preceding sentence.
In the event that a Global Security is deposited upon issuance
with a Depositary, it will be registered in the name of the Depositary or a
nominee of the Depositary (the "Global Security Registered Owner"). Payments
in respect of the principal of, premium (if any) and interest on any Securities
registered in the name of the Global Security Registered Owner will be payable
to the Global Security Registered Owner in its capacity as the registered owner
of such Global Security. The Company and the Trustee may treat the person in
whose name(s) the Securities, including the Global Security, are registered as
the owner thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. None of the Company, the Guarantor, the
Trustee, the Security Registrar, the Paying Agent or any agent of the Company,
the Guarantor or the Trustee will have any responsibility or liability for (i)
any aspect of the records relating to or payments made on account of the
beneficial ownership interests of the Global Security by the Depositary or any
of its participants, or for maintaining, supervising or reviewing any records
of the Depositary or any of its participants relating to the beneficial
ownership interests of the Global Security; (ii) the payments to the beneficial
owners of the Global Security of amounts paid to the Global Security Registered
Owner; or (iii) for any other matter relating to the actions and practices of
the Depositary or any of its participants. Neither the Company nor the
Guarantor or the Trustee will be liable for any delay by the Global Security
Registered Owner or the Depositary or any of its participants in identifying
the beneficial owners of the Securities, and the Company, the Guarantor and the
Trustee may conclusively rely on, and will be protected in relying on,
instructions from the Global Security
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Registered Owner or the Depositary for all purposes (including with respect to
the registration and delivery, and the respective principal amounts, of the
Securities to be issued).
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee or the
Company, together with such security, bond or indemnity as may be required by
the Company or the Trustee to save each of them and any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security; and (ii) such security, bond or indemnity in a form satisfactory to
both of them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the provisions of the previous paragraphs of
this Section, in case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any Security under this Section, the
Company or the Trustee shall require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee), if
any, connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security of the same series
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately and with any and all other Securities of
that series duly issued hereunder. A new Security shall have such legends as
are on the old Security, unless the Company provides otherwise.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS PRESERVED.
Principal, premium (if any), and interest due on a Security at
Maturity or upon redemption or repurchase will be paid by wire transfer in
immediately available funds against presentation and surrender of the Security
by the Holder thereof at the office of the Paying Agent, but only if
appropriate wire transfer instructions have been received in writing (or such
other means
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as deemed acceptable by the Paying Agent) by the Paying Agent not less than 15
days before Maturity or the Redemption Date or Repurchase Date. In the event
such instructions are not received by such 15th day, such principal, premium
(if any), and interest due will be paid by check against such presentation and
surrender.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid, in the case of Registered Securities, to the Person in
whose name that Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest and, in the case of Bearer Securities, upon surrender of the coupon
appertaining thereto in respect of the interest due on such Interest Payment
Date. All interest payments on any Registered Security (other than interest
due at Maturity or on redemption or repayment) will be made by mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 301, to the address of such Person as it appears on
the Security Register. Notwithstanding the foregoing, any Holder of Registered
Securities of any series which pay interest on the same Interest Payment Date
and which are in an aggregate principal amount in excess of $10,000,000 may
elect to receive payments of interest with respect to such series (other than
interest due at Maturity or on redemption or repayment) via wire transfer in
immediately available funds to a bank in New York, New York (or other bank
approved by the Paying Agent) by making arrangements therefor in writing (or
such other means as deemed acceptable by the Paying Agent) with the Paying
Agent not later than the Regular Record Date immediately preceding the
applicable Interest Payment Date.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date for Registered Securities of such series (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 the Registered
Securities of such series (or their respective Predecessor 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
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
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Defaulted Interest and the Special Record Date therefor to be mailed,
first-class posted prepaid, to each Holder of Securities of such
series at such Holder's address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business 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 on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Registered Securities of such series in respect
of which interest is in default are listed, and upon such notice as
may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of, premium (if any), and (subject to Sections
305 and 307) any interest on such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
none of the Company, the Trustee, or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by any Depositary, as a Holder, with
respect to such Global Security or impair, as between such Depositary and
owners of beneficial interests in such Global Security, the operation of
customary practices governing the exercise of the rights of such Depositary (or
its nominee) as Holder of such Global Security.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary.
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SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all such
Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section. The Trustee shall return all canceled
Securities to the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year consisting of twelve 30-day months.
No interest will accrue with respect to the 31st day of any month.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided, however, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect with
respect to any series of Securities specified in a Company Request (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such series of Securities when:
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(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid for as provided in Section 306; and (ii)
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 Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all 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) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal, premium (if any), and interest to the date of such
deposit (in the case of such Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to such series of
Securities; and
(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
and discharge of this Indenture with respect to such series have been
complied with.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to a series of Securities, the obligations of the
Company and the Trustee to the Holders of Securities of other series not so
satisfied and discharged, the obligations of the Company to the Trustee under
Section 607, the obligations of the Company to any Authenticating Agent under
Section 615, and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
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SECTION 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities of
each series 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, for all sums due or to
become due thereon for principal, premium (if any), and interest; but such
money need not be segregated from other funds except to the extent required by
law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of that default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company or the Guarantor in this Indenture
with respect to any Security of that series (other than a covenant or
warranty a default in the performance of which or the breach of which
is elsewhere in this Section specifically dealt with or that has
expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of that
default or breach for a period of 30 days after there has been given,
by registered or certified mail, to the Company and the Guarantor by
the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying the default or
breach and requiring it to be remedied and stating that the notice is
a "Notice of Default" hereunder; or
(5) if an event of default as defined in any mortgage,
indenture, bonds, debentures, notes or instrument under which there
may be issued, or by which there may be secured or evidenced, any
indebtedness of the Company or the Guarantor for money
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borrowed, whether such indebtedness now exists or shall hereafter be
created, shall happen and shall result in more than $10,000,000 (or
its equivalent in any other currency) in principal amount of such
indebtedness becoming or being declared due and payable before the
date on which it would otherwise become due and payable (in which case
the Company or the Guarantor shall give notice to the Trustee of such
default as soon as is reasonably practicable), and that acceleration
shall not be rescinded or annulled, or such indebtedness shall not
have been discharged prior to the notice in writing to the Company and
the Guarantor given pursuant to Section 502; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
or the Guarantor in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law; or (B) a decree or order adjudging the Company or
the Guarantor bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Guarantor under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or the Guarantor or of all or substantially all of
their respective property, or ordering the winding up or liquidation
of their respective affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(7) the commencement by the Company or the Guarantor of a
voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company or the Guarantor in an involuntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against either of
them, or the filing by either of them of a petition or answer or
consent seeking reorganization or relief under any applicable federal
or state law, or the consent by either of them to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or the Guarantor or of all or substantially
all of their respective property, or the making by either of them of
an assignment for the benefit of creditors, or the admission by either
of them in writing of their inability to pay their respective debts
generally as they become due, or the taking of corporate action by the
Company or the Guarantor in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series, pursuant to Section 301.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default specified in Section 501(6) or (7)
occurs, all unpaid principal of, premium (if any) and accrued interest on the
Securities of any series at the time Outstanding shall ipso facto become and
shall be immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder, and if any other Event of Default with
respect to Securities
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of any series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series may declare the
principal amount (or, if any of the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of all of the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company and the Guarantor (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount), plus any
interest accrued on the Securities of such series to the date of declaration,
shall become immediately due and payable.
Upon payment (i) of (A) such principal amount; and (B) such
interest; and (ii) of interest on any overdue principal and overdue interest at
the rate or rates prescribed therefor in the Securities of such series (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's and the Guarantor's respective obligations
in respect of the payment of principal of and interest on the Securities of
such series shall terminate.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series, by written
notice to the Company, the Guarantor and the Trustee, may rescind and annul
such declaration and its consequences (and the particular event on which the
declaration of acceleration is based shall no longer be grounds for a
declaration of acceleration) if both:
(1) the Company or the Guarantor has paid or deposited
with the Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all
Outstanding Securities of that series,
(B) the principal of (and premium, if any, on)
any Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor or
in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal (or premium,
if any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of Securities of such series, the whole amount then due and payable on
such Securities for principal, premium (if any), and interest and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal, premium (if any), and any overdue interest, at the rate
or rates prescribed therefor in such series of Securities, and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series 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.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, adjustment, composition or other
judicial proceeding relative to the Company (or any other obligor upon the
Securities of any series), its property or its creditors, the Trustee
(irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium (if any), or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise, to (i)
file and prove a claim for the whole amount, or such lesser amount as may be
provided for in the Securities of such series, of principal, premium (if any),
and interest (if any) owing and unpaid in respect of the
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Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and (ii) collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder of 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 the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
607.
No provision of this Indenture 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 Securities of any series or the rights of any Holder thereof or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or any of
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium (if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of, premium (if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium (if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Person
or Persons entitled thereto.
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SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that same series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that same series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that same series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium (if any) and
(subject to Section 307) any interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date or, in the case of repurchase at the option of the Holder, on
the Repurchase Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Guarantor, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and
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thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of
Securities of any series to exercise any right or remedy accruing upon any
Event of Default with respect to such series of Securities shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
applicable Outstanding 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, with respect to the applicable Outstanding Securities of such series,
provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such
direction, and
(3) such direction is not unduly prejudicial to the
rights of the other Holders of Securities of such
series.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of the
Holders of all the Outstanding Securities of such series, waive any past
default hereunder with respect to such series and its consequences, except a
default
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(1) in the payment of the principal of, premium (if any),
or interest on any Security of such series when due (other than
amounts due and payable solely upon acceleration pursuant to Section
502) unless theretofore paid in full and cured in accordance with the
terms of this Indenture, or
(2) in respect of a covenant or provision hereof which
under Section 902 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder by such
Holder's acceptance of Securities shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, to the filing by any
party litigant in such suit other than the Trustee 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 and expenses, 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 shall not apply to any suit instituted by the Company, 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
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of, premium (if any), or
interest on any Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date) or interest on any overdue principal of any Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) With respect to Securities of any series, except
during the continuance of an Event of Default with respect to the Securities of
such series,
(1) the Trustee undertakes to perform such duties and
only such duties 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 its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
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statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, 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) With respect to Securities of any series, in case an
Event of Default with respect to the Securities of such series has occurred and
is continuing, 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 individual would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) 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
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it with respect to Securities
of any series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding
Securities of such series, determined as provided in and subject to
Section 512, 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 the Securities of such series, provided such direction
shall not be in conflict with any rule of law or with this Indenture;
and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
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SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit by
mail to all Holders of Securities of such series, as their names and addresses
appear in the Security Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of, premium (if any), or interest on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
Except with respect to an Event of Default pursuant to Section 501(1), (2) or
(3), the Trustee shall not be charged with knowledge of any default or Event
of Default hereunder unless the written notice thereof shall have been given to
a Responsible Officer at the Corporate Trust Office by the Company, the
Guarantor, a Paying Agent, any Holder or an agent of any Holder.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order, and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its
selection, and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any series
pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company
pertaining to the Securities, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes
any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Authenticating Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Authenticating Agent,
Security Registrar or such other agent.
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SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation as shall be agreed upon in writing between the Company
and the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of any express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee, any predecessor
Trustee and their respective agents for, and to hold them harmless
against, any and all loss, damage, claim, liability or expense,
including taxes (other than taxes based on the income of the Trustee),
incurred without negligence, willful misconduct or bad faith on their
own part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(6) or (7) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other
similar law.
The Trustee shall have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
The provisions of this Section shall survive the termination of this Indenture
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting
interest (as defined in this Section) with respect to the Securities of any
series then, within 90 days after ascertaining that it has such conflicting
interest and if the default (as defined in this Section) to which such
conflicting interest relates has not been cured or duly waived or otherwise
eliminated before the end of such 90-
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day period, the Trustee shall either eliminate such conflicting interest or,
except as otherwise provided below in this Section, resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply
with the provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to the Company and all
Holders of Securities of that series, as their names and addresses appear in
the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall
be deemed to have a conflicting interest with respect to the Securities of any
series if the Securities of such series are in default (as determined in
accordance with the provisions of Section 501, but exclusive of any period of
grace or requirement of notice) and
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any securities, of the Company are outstanding or is
trustee for more than one outstanding series of securities (as defined
in this Section) under a single indenture of the Company, unless such
other indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture;
provided that there shall be excluded from the operation of this
Section other series of Securities issued under this Indenture and any
other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if
(i) this Indenture and such other indenture or
indentures are wholly unsecured and such other indenture or
indentures are hereafter qualified under the Trust Indenture
Act, unless the Commission shall have found and declared by
order pursuant to Section 305(B) or Section 307(c) of the
Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to Securities of
that series and one or more other series or the provisions of
such other indenture or indentures which are so likely to
involve a material conflict of interest as to make it
necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Securities of that series
and such other series or under such other indenture or
indentures, or
(ii) the Company or the Guarantor, as the case may
be, shall have sustained the burden of proving, on application
to the Commission and after opportunity for hearing thereon,
that trusteeship under this Indenture with respect to the
Securities of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect
to the Securities of that series and such other series under
such other indenture or indentures;
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(2) the Trustee or any of its directors or executive
officers is an obligor upon the Securities or an underwriter for the
Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with the Company, the Guarantor or an underwriter for
the Company or the Guarantor;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee, or
representative of the Company or the Guarantor, or of an underwriter
(other than the Trustee itself) for the Company or the Guarantor who
is currently engaged in the business of underwriting, except that (i)
one individual may be a director and/or an executive officer of the
Trustee and a director and/or an executive officer of the Company or
the Guarantor, but may not be at the same time an executive officer of
both the Trustee and the Company or the Guarantor; (ii) if and so long
as the number of directors of the Trustee in office is more than nine,
one additional individual may be a director and/or an executive
officer of the Trustee and a director of the Company or the Guarantor;
and (iii) the Trustee may be designated by the Company, the Guarantor
or by any underwriter for the Company or the Guarantor to act in the
capacity of transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent or depositary, or in any other similar capacity,
or, subject to the provisions of paragraph (1) of this Subsection, to
act as trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee
is beneficially owned either by the Company or the Guarantor or by any
director, partner or executive officer thereof, or 20% or more of such
voting securities is beneficially owned, collectively, by any two or
more of such persons; or 10% or more of the voting securities of the
Trustee is beneficially owned either by an underwriter for the Company
or the Guarantor or by any director, partner or executive officer
thereof, or is beneficially owned, collectively, by any two or more
such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company or the Guarantor not including the Securities issued under
this Indenture and securities issued under any other indenture for
which the Trustee is also trustee, or (ii) 10% or more of any class of
security of an underwriter for the Company or the Guarantor;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns
10% or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the
Company or the Guarantor;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10% or more of any
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class of security of any person who, to the knowledge of the Trustee,
owns 50% or more of the voting securities of the Company or the
Guarantor;
(9) the Trustee owns, on the date of default under the
Securities of such series (as determined in accordance with the
provisions of Section 501, but exclusive of any period of grace or
requirement of notice) or any anniversary of such default while such
default upon the Securities of such series remains outstanding, in the
capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of
any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this Subsection. As to
any such securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such
estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after the dates of any such default upon
the Securities of such series and annually in each succeeding year
that the Securities of such series remain in default, the Trustee
shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such date. If the Company or the
Guarantor fails to make payment in full of the principal of, premium
(if any), or interest on any of the Securities of any series when and
as the same becomes due and payable, and such failure continues for 30
days thereafter, the Trustee shall make a prompt check of its holdings
of such securities in any of the above-mentioned capacities as of the
date of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over
such securities vested in it, shall, but only so long as such failure
shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this
Subsection; or
(10) except under the circumstances described in
Subsections (1), (3), (4), (5) or (6) of Section 613(b), the Trustee
shall be or shall become a creditor of the Company.
For purposes of paragraph (1) of this Subsection, the term
"series of securities" or "series" means a series, class, or group of
securities issuable under an indenture pursuant to whose terms holders of one
such series may vote to direct the indenture trustee, or otherwise take action
pursuant to a vote of such holders, separately from holders of another such
series; provided that "series of securities" or "series" shall not include any
series of securities issuable under an indenture if all such series rank
equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraphs (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as
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corporate securities, but shall not include any note or other evidence of
indebtedness issued to evidence an obligation to repay moneys lent to a person
by one or more banks, trust companies or banking firms, or any certificate of
interest or participation in any such note or evidence of indebtedness; (ii) an
obligation shall be deemed to be "in default" when a default in payment of
principal shall have continued for 30 days or more and shall not have been
cured; and (iii) the Trustee shall not be deemed to be the owner or holder of
(A) any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause (ii)
above, or (B) any security which it holds as collateral security under this
Indenture, irrespective of any default hereunder, or (C) any security which it
holds as agent for collection, or as custodian, escrow agent or depositary, or
in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to
the Company or the Guarantor, means every person who, within one year
prior to the time as of which the determination is made, has purchased
from the Company with a view to, or has offered or sold for the
Company in connection with, the distribution of any security of the
Company outstanding at such time, or has participated or has had a
direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include
a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation or any individual performing similar functions with
respect to any organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation,
a partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include
only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
holder of such security are currently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the
Securities of any series.
(6) The term "executive officer" means the president,
every vice president, every trust officer, the cashier, the secretary
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
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(7) The term "Guarantor" means the Person named as
Guarantor in the first paragraph of this Indenture until a successor
corporation shall become such pursuant to the applicable provisions of
this Indenture, and thereafter "Guarantor" shall mean such successor
corporation.
(e) The percentages of voting securities and other
securities specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this paragraph)
means such amount of the outstanding voting securities of such person
as entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount," when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer
shall be deemed outstanding if any person other than the
issuer is entitled to exercise voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes and
provided, further, that, in the case of unsecured evidences of
indebtedness,
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differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the
principal of, premium (if any) or interest on any of the Securities of any
series, or in the payment of any sinking fund installment, the Trustee shall
not be required to resign as provided by this Section if the Trustee shall have
sustained the burden of proving, on application to the Commission, and after
opportunity for hearing thereon, that (i) a default hereunder may be cured or
waived during a reasonable period and under the procedures described in such
application and (ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interest of the Holders of the Securities of such series.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
or of any state of the United States or the District of Columbia which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by federal or state authority. Such Trustee shall
have a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly
or indirectly controlling, controlled by, or under common control with the
Company shall serve as Trustee hereunder. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving not less than 30 days prior
written notice to the Company and the Guarantor specifying its intention to
resign, the reason therefor, and specifying the date on which the resignation
shall become effective. Notwithstanding the foregoing, unless the reason for
such resignation is a conflict pursuant to Section 608, then such Trustee must
resign with respect to all Securities if the Trustee resigns with respect to
any series of Securities. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
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(c) The Trustee may be removed at any time with respect
to the Securities of any series by the Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee
within 30 days after the Act of the Holders of such series calling for the
removal of the Trustee, the Trustee may petition a court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security of any series for at least six
months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the
Company or by any such Holder who has been a bona fide Holder of a
Security of any series at least six months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged 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, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee with respect to any series of Securities or all
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security of any series for at least six months may, on behalf of
himself or herself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to such
series of Securities or all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
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series for at least six months may, on behalf of himself or herself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give or cause to be given notice of
each resignation and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held
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by such retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments reasonably necessary for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by or on behalf of the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities. In case any Securities shall have not been
authenticated by such predecessor Trustee, any successor Trustee may
authenticate and deliver such Securities in either its own name or that of its
predecessor Trustee, with full force and effect which this Indenture provides
for the certificate of authentication of the Trustee.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the
Trustee of Securities of any series shall be, or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company or the Guarantor
within three months prior to a default upon Securities of such series, as
defined in Subsection (c) of this Section, 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 and
the Holders of the Securities of such series:
(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 or the Guarantor
and its other creditors, except any such reduction resulting from the
receipt or disposition of any property described in paragraph (2) of
this Subsection, 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 or the Guarantor 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
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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 or the Guarantor and their
respective 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 or the Guarantor) 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 or the Guarantor in bankruptcy or
receivership or in proceedings for reorganization pursuant to
the federal Bankruptcy Code (as defined herein) or any other
applicable federal or 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 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 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 and the Holders of the Securities of such
series in such manner that the Trustee and such Holders realize, as a result of
payments from such special account and payments of dividends on claims filed
against the Company or the Guarantor in bankruptcy or receivership or in
proceedings for reorganization pursuant to the federal Bankruptcy Code or any
other applicable federal or state law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company or the Guarantor of the funds and
property in such special account
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and before crediting to the respective claims of the Trustee and such Holders
dividends on claims filed against the Company or the Guarantor in bankruptcy or
receivership or in proceedings for reorganization pursuant to the federal
Bankruptcy Code or any other applicable federal or 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 proceedings for
reorganization pursuant to the federal Bankruptcy Code or any other applicable
federal or 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 and such Holders, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and 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 and such Holders 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 which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
Subsection 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 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 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 advances and of the
circumstances
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surrounding the making thereof is given to the Holders of Securities
of the appropriate series at the time and in the manner provided in
this Indenture;
(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;
(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 cash transactions as defined in Subsection
(c) of this Section;
(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 the Guarantor; 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.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment
in full of the principal of or interest on any of the Securities of
such series or upon the other indenture securities when and as such
principal or interest becomes due and payable.
(2) The term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable upon
demand.
(3) The term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company or the Guarantor for the purpose
of financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the
goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company or the
Guarantor arising from the making, drawing, negotiating, or incurring
of the draft, bill of exchange, acceptance or obligation.
(4) The term "Company" means any obligor upon the
Securities.
(5) The term "federal Bankruptcy Code" means the
Bankruptcy Code, Title 11 of the United States Code.
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(6) The term "Guarantor" means the Person named as the
Guarantor in the first paragraph of this Indenture until a successor
corporation shall become such pursuant to the applicable provisions of
this Indenture, and thereafter "Guarantor" shall mean such successor
corporation.
SECTION 614. COMPLIANCE WITH TAX LAWS.
The Trustee hereby agrees to comply with all U.S. federal
income tax information reporting and withholding requirements with respect to
payments of premium (if any) and interest on the Securities, whether acting as
Trustee, Security Registrar, Paying Agent or otherwise with respect to the
Securities.
SECTION 615. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication
and delivery of Securities 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 an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
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, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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An Authenticating Agent for any series of securities may
resign at any time by giving written notice thereof to the Trustee, the Company
and the Guarantor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent, the Company and the Guarantor. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such Securities may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall (i) mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Registered Securities of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register, and (ii) if Securities of the series are issued as
Bearer Securities, publish notice of such appointment at least once in an
Authorized Newspaper in the place where such successor Authenticating Agent has
its principal office if such office is located outside the United States. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effects as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be
applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[TRUSTEE]
as Trustee
By: __________________________________
As Authenticating Agent
By: __________________________________
Authorized Signatory
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need
not comply with
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Section 102) by the Company, shall appoint in accordance with this Section 615
an Authenticating Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
The Trustee is hereby appointed as an Authenticating Agent.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 701. COMPANY AND GUARANTOR TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS.
The Company and the Guarantor will furnish or cause to be
furnished to the Trustee
(a) semi-annually, not more than 15 days after each
Regular Record Date (or, if there is no Regular Record Date relating to a
series, semi-annually on the dates set forth in or pursuant to the Board
Resolution or supplemental indenture with respect to such series), a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders of Securities of such series as of such date, and
(b) at such other times as the Trustee may reasonably
request in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided, however, that so long as the Trustee shall be the Security Registrar,
no such list need be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders (i) contained in
the most recent list furnished to the Trustee as provided in Section 701, (ii)
received by the Trustee in its capacity as Security Registrar and (iii) filed
with it within the two preceding years pursuant to Section 703(c)(2). The
Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished, and destroy not earlier than two years
after filing, any information filed with it pursuant to Section 703(c)(2).
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security 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
with respect to their rights under this Indenture or under the 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
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(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
702(a), 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 whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
702(a) 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 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
interest of the Holders of Securities of such series or would be in violation
of applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for 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 entry of an order sustaining one or
more of such objections, the 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 of Securities of such series, with reasonable
promptness after the entry of such order and the renewal of such tender.
(c) Every Holder, by receiving and holding Securities,
agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor nor the Trustee nor any agent of any of them shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with Section 702(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing pursuant to a
request made under Section 702(b).
(d) The Company and the Guarantor agree with the Trustee
that the Trustee shall not be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with Section 702(b), 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 Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) The term "reporting date," as used in this Section,
means May 15. Within 60 days after the reporting date in each year (beginning
with May 15, 1997), the Trustee shall transmit by mail to all Holders of
Securities, as their names and addresses appear in the Security Register, a
brief report dated as of such date in accordance with, and only if required
under, Section 313(a) of the Trust Indenture Act.
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(b) The Trustee shall transmit by mail to all Holders of
Securities, as their names and addresses appear in the Security Register, a
brief report with respect to the matters specified in, and within the times
required under, Section 313(b) of the Trust Indenture Act.
(c) Reports pursuant to this Section shall be transmitted
by mail:
(1) to all Holders of Registered Securities, as
the names and addresses of such Holders appear in the Security
Register;
(2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their
names and addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to
Subsection (b) of this Section, to each Holder of a Security
whose name and address is preserved at the time by the
Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with the
Commission, each stock exchange upon which the Securities are listed, and also
with the Company. The Company will promptly notify the Trustee if and when
Securities of any series are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY AND THE GUARANTOR.
The Company and the Guarantor will:
(1) file with the Trustee, within 15 days after the
Company or the Guarantor, as the case may be, is required to file the
same with the 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 the Commission may from time to time by
rules and regulations prescribe) which the Company or the Guarantor
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company or the Guarantor
is not required to file information, documents or reports pursuant to
either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Company or the Guarantor with the
conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations;
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(3) transmit to all Holders, in the manner and to the
extent provided in Section 703(c) with respect to reports pursuant to
Section 703(a), 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 or the Guarantor pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) deliver to the Trustee, forthwith upon becoming aware
of any default or defaults in the performance of any covenant,
agreement or condition contained in this Indenture, and in any event
not less often than annually, an Officers' Certificate specifying such
default or defaults, or the extent of the Company's and Guarantor's
compliance with all conditions and covenants hereof (which compliance
shall be determined without regard to any period of grace or notice
provided hereunder), as the case may be.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR TRANSFER
SECTION 801. CONSOLIDATIONS, MERGERS AND SALES PERMITTED SUBJECT TO CERTAIN
CONDITIONS.
The Company and the Guarantor shall not consolidate with, or
sell or convey all or substantially all of their respective assets to, or merge
with or into any other person or entity unless (i) either the Guarantor or the
Company shall be the continuing corporation, or the successor shall be a
corporation organized and existing under the laws of the United States or a
state thereof and the successor corporation shall expressly assume the due and
punctual payment of the principal of and interest on all the Securities and the
due and punctual performance and observance of all of the covenants and
conditions of the Guarantor or the Company, as applicable, under this Indenture
by supplemental indenture satisfactory to the Trustee, executed and delivered
to the Trustee by such corporation; (ii) the Guarantor or the Company, as
applicable, or the successor corporation, as the case may be, shall not,
immediately after the merger or consolidation, or the sale or conveyance, be in
default in the performance of any such covenant or condition; and (iii) after
giving effect to the transaction, no event which, after notice or lapse of
time, would become an Event of Default shall have occurred or be continuing.
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SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such consolidation, merger, sale or conveyance
and upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Guarantor or the
Company, as applicable, with the same effect as if it had been named herein as
the party of the first part, and the predecessor corporation shall be relieved
of any further obligation under this Indenture and the Securities. Any such
successor corporation to the Company thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate
and shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Securities of
any series so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities of that series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 601 and
603, may receive an Officers' Certificate and 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 Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the
Guarantor, when authorized by or pursuant to one or more Board Resolutions, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company or the Guarantor herein and in the
Securities; or
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(2) to add to the covenants of the Company or the
Guarantor for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company or the
Guarantor; or
(3) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Bearer Securities of any series, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities of any series in
uncertificated form; or
(4) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities;
provided, however, that any such addition, change or elimination shall
either (i) not adversely affect the rights of the Holders of
Outstanding Securities of any series in any material respect, or (ii)
not apply to any Outstanding Securities of any series created prior to
the execution of such supplemental indenture where such addition,
change or elimination has an adverse effect on the rights of the
Holders of such Outstanding Securities in any material respect; or
(5) to secure the Securities of any series; or
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(8) to cure any ambiguity or defect in and to correct or
supplement any provision in this Indenture or any Security of any
series that may be inconsistent with any other provision in this
Indenture or in the Security of such series, or to make any other
provisions with respect to matters or questions arising under this
Indenture; provided, however, that any such action pursuant to this
clause (8) shall not be inconsistent with the provisions of this
Indenture and shall not adversely affect the rights of the Holders of
Outstanding Securities of any series in any material respect; or
(9) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect qualification
of this Indenture under the Trust Indenture Act, or under any similar
federal statute hereafter enacted, and to add to this Indenture such
other provisions as may be expressly permitted by the Trust Indenture
Act; or
(10) to amend or supplement the restrictions on and
procedures for resale, attempted resale and other transfers of any
series of Securities (whether or not Outstanding)
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to reflect any change in applicable law or regulation (or
interpretation thereof) or in practices relating to the resale or
transfer of restricted securities generally.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series at the time
Outstanding affected by such supplemental indenture (voting as one class), by
the Act of said Holders delivered to the Company, the Guarantor and the
Trustee, the Company and the Guarantor, when authorized by or pursuant to Board
Resolutions, and the Trustee may 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
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security of each
series affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment or principal of or interest on, any such Security, or
reduce the principal amount thereof or the rate of interest thereon or
premium (if any) payable upon the redemption thereof, or reduce the
obligation of the Company to pay principal amounts, or reduce the
amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any such Security of
such series or any principal, premium (if any), or interest thereon is
payable or impair the right to institute suit for the enforcement of
any such payment on or after the due date thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any modifications or amendments to this Indenture or to
the terms and conditions of that series of Securities, or to approve
any supplemental indenture relating to such series, or the consent of
whose Holders is required for any waiver with respect to such series
(of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 1009, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to the "Trustee" and concomitant
changes in this Section and Section 1009, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and
901(7).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular previously created series of
Securities, or which modifies the rights of the Holders of Securities of
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such previously created series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of such previously created series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES; OPINIONS.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not (except to the extent required in the case of a supplemental
indenture entered into under Section 901(9)) be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Except as provided in this Article, upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act if at that date
the Indenture shall then be qualified under the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Company, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of,
premium (if any) and interest on the Securities of that series in accordance
with the terms of the Securities and this Indenture. Any interest due on and
payable in respect of Bearer Securities on or before Maturity shall be payable
only upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series (but
not Bearer Securities, except as otherwise provided below, unless such Place of
Payment is located outside the United States) may be presented or surrendered
for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If
Securities of a series are issuable as Bearer Securities and so long as any of
such Bearer Securities are Outstanding, the Company will maintain, subject to
the laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series may be presented and surrendered for payment;
provided, however, that if the Securities of such series are listed on the
Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States as the case may be, so long as the Securities
of such series are listed on such exchange. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series may be presented and surrendered for payment at the
place specified for that purpose pursuant to Section 301, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of
any particular series pursuant to the provisions of this Indenture, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, payment of principal of,
premium (if any) and interest in U.S. dollars on any Bearer Security may be
made at the office of the Trustee in the Borough of Manhattan, The City of New
York if (but only if) payment of the full amount of such
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principal, premium (if any) or interest at all offices outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to any series of any Securities, it will, on or before each due
date of the principal of, premium (if any), or interest on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal, premium (if
any), or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or before each due date of the principal
of, premium (if any), or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided in the following paragraph, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) hold all sums
held by it for the payment of the principal of, premium (if any), or interest
on any Securities of that series in trust for the benefit of the Holders of
such Securities of that series until such sums shall be paid to such Holders or
otherwise disposed of as herein provided; (ii) give the Trustee notice of any
default by the Company (or any other obligor upon any Securities of that
series) in the making of any payment of principal, premium (if any), or
interest; and (iii) during the continuance of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, and upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct the Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and upon such payment by any Paying Agent to the Trustee, the Company
and such Paying Agent shall be released from all further liability with respect
to such sums.
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Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium (if any), or interest on any
Security of any series and remaining unclaimed for one year after such
principal, premium (if any), or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such deposited money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in each Place of Payment or to be mailed to Holders of Registered Securities,
or both, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication or mailing nor shall it be later than two years after such
principal (and premium, if any), interest or any Additional Amounts has become
due and payable, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company and the Guarantor will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company and
the Guarantor ending after the date hereof, statements signed on behalf of the
Company and the Guarantor by their respective principal executive officer,
principal financial officer or principal accounting officer stating that in the
course of the performance by the signer of his or her duties as an officer of
the Company or the Guarantor, as applicable, such officer would normally obtain
knowledge of any default (without regard to grace periods or notice
requirements) by the Company or the Guarantor, as applicable, in the
performance or fulfillment of any covenant, agreement or condition contained in
this Indenture, and stating whether such officer has obtained knowledge of any
such default, and, if so, specifying each such default of which the signer has
knowledge and the nature thereof.
(b) The Company and the Guarantor will deliver to the
Trustee, within five days after the occurrence thereof, written notice of any
event which after notice or lapse of time or both would become an Event of
Default pursuant to Section 501.
SECTION 1005. RESTRICTION ON CREATION OF SECURED DEBT.
So long as the Securities of any series remain Outstanding,
the Guarantor and 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 Guarantor 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, without first making effective provision (and the Guarantor
and the Company covenant that in such case they will first make or cause to be
made effective provision) whereby the Securities of each series then
Outstanding and any other indebtedness of or guaranteed by the Guarantor and
the Company or such Restricted Subsidiary then entitled thereto, subject to
applicable priorities of payment, shall be secured by the Security
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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 Guarantor or a Restricted
Subsidiary and created prior to or contemporaneously with, or within 180 days
after the acquisition of property which is a parcel of real property, a
building, machinery or equipment; or (ii) the acquisition by the Guarantor, 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 Guarantor, 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
Guarantor, 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 Guarantor, 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 Guarantor, 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
Guarantor, 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 Guarantor, 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 the premises
leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary
course of business; or
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(h) Security Interests arising in connection with
contracts and subcontracts with or made at the request of the United States, or
any state thereof, or any department, agency or instrumentality of the United
States; or
(i) Security Interests in property of the Guarantor, the
Company or a Restricted Subsidiary to secure partial, progress, advance or
other payments or 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 180 days 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 the United States
or any state, county or local government, or any agency of the United States,
or any holder of bonds or other securities thereof issued, in connection with
the financing of the cost of acquiring, constructing or improving property of
the Guarantor, 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 any 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 Guarantor, 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
Security Interest so extended, renewed or refunded and additions to such
property.
Notwithstanding the foregoing provisions of this Section 1005,
the Guarantor, 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 to be secured under subparagraphs (a) through (k),
inclusive, above) of the Guarantor, the Company and the 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 1006), 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 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.
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SECTION 1006. RESTRICTION ON SALE AND LEASEBACK TRANSACTIONS.
So long as the Securities of any series remain Outstanding,
the Guarantor and the Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction, unless (a) the
Guarantor, the Company or such Restricted Subsidiary would be entitled to incur
Secured Debt only by reason of the last paragraph of Section 1005 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 Securities of any series as provided in said Section, or (b) the
Guarantor, the Company or a Restricted Subsidiary shall apply, within 180 days
after the effective date of such sale or transfer, an amount equal to such net
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 Securities in accordance
with the provisions of Article Eleven, or to the repayment of Senior Funded
Debt of the Guarantor, 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 Guarantor or the Company may,
within 180 days after such sale or transfer, deliver to the Trustee Securities
(other than Securities made the basis of a reduction in a mandatory sinking
fund payment pursuant to Section 1202) for cancellation and thereby reduce the
amount to be applied to the redemption of Securities pursuant to clause (ii)
above by an amount equivalent to the aggregate principal amount of Securities
so delivered (for the purposes of making such calculation the principal amount
of Original Issue Discount Securities so canceled shall mean the portion
thereof that could have been declared due and payable pursuant to Section 502
at the time canceled). Redemption of Securities pursuant to this Section 1006
shall not be used as credits against mandatory sinking fund payments.
SECTION 1007. RESTRICTION ON TRANSFER OF PRINCIPAL FACILITIES.
So long as the Securities of any series remain Outstanding,
the Guarantor and the Company will not, and will not cause, suffer or permit
any Restricted Subsidiary to, transfer (whether by merger, consolidation or
otherwise) any Principal Facility to any Person other than the Guarantor, the
Company or a Restricted Subsidiary, unless it shall apply, within 180 days
after the effective date of such transaction, 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 Securities of
any series in accordance with the provisions of Article Eleven, or to the
repayment of Senior Funded Debt of the Guarantor, 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 to all or any part of such fair value to such redemption, the
Guarantor may, within 180 days after such transfer, deliver to the Trustee
Securities (other than Securities made the basis of a reduction in a mandatory
sinking fund payment pursuant to Section 1202) for cancellation and thereby
reduce the amount to be applied to the redemption of
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the Securities of that series pursuant to clause (b), an amount equivalent to
the aggregate principal amount of Securities so delivered (for purposes of
making such calculation the principal amount of Original Issue Discount
Securities so canceled shall mean the portion thereof that could have been
declared due and payable pursuant to Section 502 at the time canceled).
Redemption of Securities pursuant to this Section 1007 shall not be used as
credits against mandatory sinking fund payments.
SECTION 1008. RESTRICTION ON SENIOR FUNDED DEBT BY RESTRICTED SUBSIDIARIES
OF COMPANY.
So long as the Securities of any series remain Outstanding,
the Company will not permit any of its Restricted Subsidiaries to (a) create,
assume or suffer to exist any Senior Funded Debt other than (i) Senior Funded
Debt which is permitted to such Restricted Subsidiary as Secured Debt under
Section 1005, (ii) Senior Funded Debt owed to the Guarantor, the Company or
another Restricted Subsidiary, (iii) Senior Funded Debt of a corporation or
other entity existing at the time such corporation or other entity becomes a
Restricted Subsidiary or is merged with or into a Restricted Subsidiary, (iv)
Senior Funded Debt of a corporation or other entity assumed by a Restricted
Subsidiary in the acquisition of all or substantially all or a portion of the
business of such corporation or other entity, and (v) Senior Funded Debt
existing on the date hereof; or (b) guarantee, directly or indirectly through
any arrangement which is substantially the equivalent of a guarantee, any
Senior Funded Debt of another Subsidiary except for (i) guarantees existing as
of the date hereof, and (ii) guarantees of Senior Funded Debt permitted to a
Restricted Subsidiary under the proceeding clause (a) of this Section 1008.
SECTION 1009. WAIVER OF CERTAIN COVENANTS.
The Company and the Guarantor may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1005 through 1008, inclusive, with respect to the Securities of any series if
before or after the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series shall, by the
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
SECTION 1010. REDEMPTION AT THE OPTION OF THE HOLDERS IN CERTAIN
CIRCUMSTANCES.
(a) In addition to any other repurchase or redemption of
the Securities of any series at the option of the Holders thereof which may be
specified for such series as contemplated by Section 301, if during the 180-day
period beginning 90 days before the date of first public announcement or
disclosure by the Company, the Guarantor or any Person (including, without
limitation, directors or officers of the Company or the Guarantor) of an
intention to effect the occurrence of a Restructuring Event and ending 90 days
thereafter (or such longer period as the rating of the Securities of such
series shall be under publicly announced consideration by a National Rating
Agency), two or more National Rating Agencies, at least one of which is either
Moody's Investors Service, Inc. or Standard & Poor's Corporation, shall
downgrade their respective ratings of the Securities of such series from the
ratings in effect at the beginning of such 180-day period
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(each a "Downgrading Agency," and such event a "Put Event"), then each Holder
of Securities of such series shall have the right, at such Holder's option and
subject to the conditions of this Section 1010, to require the Company to
purchase all or any portion of such Holder's Securities of such series at a
purchase price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the Purchase Date (as hereinafter defined) (or if
such Securities are Original Issue Discount Securities, 100% of that portion of
the principal amount thereof that, as specified in the terms of the Securities
of that series, would be payable if the maturity thereof were accelerated
pursuant to Section 502 to the Purchase Date). The exercise by a Holder of its
right to require the Company to purchase all or a portion of such Holder's
securities pursuant to this Section 1010 shall be irrevocable unless waived by
the Company. Notwithstanding anything to the contrary in this Section 1010,
with respect to the Securities of any series, the Company shall not be
obligated to purchase Securities or such series or give notice to the Holders
thereof with respect to more than once with respect to the same Put Event.
Notwithstanding the foregoing, a National Rating Agency that
downgrades its rating of the Securities of a series during the 90-day period
prior to the public announcement or disclosure of a Restructuring Event shall
not be deemed a Downgrading Agency if it upgrades its rating of the Securities
of such series by the close of business on the date of such public announcement
or disclosure to at least the rating (the "Threshold Rating") it had given to
the Securities of such series at the beginning of such 90-day period (the
"Threshold Rating") and does not thereafter downgrade such rating below the
Threshold Rating during the 180-day period referenced in the preceding
paragraph.
(b) In case a Put Event shall have occurred, the Company
shall, in the manner provided in Section 106, give notice of such Put Event to
the Trustee and to each Holder of Securities of such series within fifteen days
following such occurrence, which notice shall set forth details regarding the
right of the Holders to require the Company to purchase Securities of such
series, the date (the "Purchase Date") fixed for purchase by the Company of
such Securities, which date shall (subject to Section 114) be the 90th day
following the date on which such notice is mailed by the Company to the Holders
of Registered Securities (or, if Securities of the series are issuable as
Bearer Securities and such notice is published as provided in Section 106, then
the 90th day following the date of the first publication of such notice), and
the name and address of the Paying Agent to which such Securities (together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Purchase Date) are to be presented and surrendered (which
Paying Agent, for purposes of this Section 1010, shall, in the case of
Registered Securities, be the Trustee and, in the case of Bearer Securities,
shall be the office or agency maintained by the Company for such purpose in a
place of payment located outside the United States (except as otherwise
provided in Section 1002)). If applicable, such notice shall also state that
interest accrued to the Purchase Date will be paid as specified in said notice
and that interest (or, in the case of Original Issue Discount Securities,
original issue discount) on Securities (or portions thereof) presented and
surrendered for purchase will cease to accrue on and after the Purchase Date
(unless the Company defaults in paying the purchase price and accrued interest,
if any).
Any Holder intending to exercise its right to put its
Securities to the Company, shall deliver written notice of such intention to
the Paying Agent, and shall concurrently present and surrender the Securities
(together, in the case of Bearer Securities, with all coupons appertaining
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thereto, if any, maturing after the Purchase Date) to be purchased to the
applicable Paying Agent in proper form for purchase by the Company, by the
close of business on the fifteenth day preceding the Purchase Date. Any
Registered Security so surrendered for purchase in part shall (if the Company,
the Registrar or the Trustee so requires) be duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company, the
Registrar and/or the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing. Such notice by a Holder shall identify
the Securities so surrendered, their aggregate principal amount and, if less
than the entire principal amount thereof is to be purchased, the portion of
such principal amount to be purchased (in increments of the minimum authorized
denomination for Securities of such series) and the denomination or
denominations (which shall be an authorized denomination for Securities of such
series) of the Security or Securities to be issued to the Holder for the
portion of the principal amount of the surrendered Security not to be
purchased, and shall include such other information as may be specified for
Securities of such series as contemplated by Section 301 (including, to the
extent applicable, the name and address of the Holder and/or the Person to whom
payment of the purchase price is to be made). No such notice shall be deemed
to have been delivered, and no such Securities shall be deemed to have been
presented and surrendered, until such notice and Securities are actually
received by the Paying Agent. The right of the Holders to require the Company
to purchase Securities pursuant to this Section 1010 shall terminate as of the
close of business on the fifteenth day preceding the Purchase Date and the
Company shall not be obligated to purchase any Securities presented and
surrendered thereafter.
(c) With respect to each Security which has been properly
presented and surrendered, together with all coupons, if any, appertaining
thereto maturing after the Purchase Date, and as to which notice has been given
to the Paying Agent of the Holder's intention to put the same (or any portion
thereof) to the Company in accordance with this Section 1010, such Security (or
portion thereof) shall become due and payable on the Purchase Date, and on and
after the Purchase Date (unless, as to any such Security (or portion thereof),
the Company fails to make the deposit of the purchase price thereof and pay the
accrued interest, if any, thereon as provided below) interest (or, in the case
of Original Issue Discount Securities, original issue discount), if any, on
such Securities (or portions thereof) shall cease to accrue and the coupons for
such interest appertaining to any Bearer Securities so to be purchased, except
to the extent provided below, shall be void. On or before noon, New York time,
on the Purchase Date, the Company shall deposit with the applicable Paying
Agent money, in immediately available funds, sufficient to pay the purchase
price of, and (except if the Purchase Date is an Interest Payment Date) accrued
interest, if any, on, all Securities or portions thereof to be purchased on the
Purchase Date. Unless otherwise specified as contemplated by Section 301, the
Paying Agent shall promptly mail to the Holders of such Securities payment in
an amount equal to such purchase price and accrued interest, if any; provided,
however, that (i) no such payment with respect to any Bearer Security shall be
mailed to any address in the United States (except as otherwise provided in
Section 1002); (ii) installments of interest on Bearer Securities whose stated
maturity is on or prior to the Purchase Date shall be payable only at an office
or agency maintained by the Company in a place of payment located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of the coupons for such interest, (iii) unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose stated maturity is on or prior to the Purchase Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant
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Regular Record Date or Special Record Date, as the case may be, according to
their terms and the provisions of Section 307, and (iv) unless otherwise
specified as contemplated by Section 301, if the Purchase Date is after a
record date for the payment of interest on Registered Securities of a series
and before the related Interest Payment Date, any accrued and unpaid interest
to the Purchase Date will be payable on the Purchase Date to the person who was
the registered Holder of such Security at the close of business on such Regular
Record Date.
If any Bearer Security surrendered for purchase shall not be
accompanied by all appurtenant coupons maturing after the Purchase Date, such
Security may be purchased after deducting from the purchase price therefor an
amount equal to the face amount of all such missing coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee
if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
purchase price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002), and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Registered Security is duly surrendered in accordance
with this Section 1010 for purchase in part only, the Company shall execute,
and the Trustee shall promptly authenticate and deliver to the Holder of such
Security, without service charge, a new Registered Security or Registered
Securities of the same series, containing identical terms and provisions, of
any authorized denomination as requested by such Holder in its notice given
pursuant to Section 1010(b) in aggregate principal amount equal to and in
exchange for the unpurchased portion of the principal amount of the Security so
surrendered, and, unless otherwise specified as contemplated by Section 301, if
a Global Security is so surrendered, the Company shall execute, and the Trustee
shall promptly authenticate and deliver to the Depositary for such Global
Security, without service charge, a new Global Security in a denomination equal
to and in exchange for the unpurchased portion of the principal amount of the
Global Security so surrendered.
The Company shall comply with the Exchange Act to the extent
applicable, and with any other applicable federal and state securities law in
performing its obligations under this Section 1010.
(d) For so long as any Securities of such series shall
remain outstanding, the Company and the Guarantor shall provide such
information, pay such customary rating service fees and related expenses and
take all reasonable action necessary or appropriate to enable the National
Rating Agencies to provide ratings for the Securities of such series.
(e) Notwithstanding anything to the contrary in this
Indenture, if the giving of the notice of a Put Event shall have been completed
as provided in this Section 1010, or if provision satisfactory to the Trustee
for the giving of such notice shall have been made, and if the Company shall
have deposited with the applicable Paying Agent, funds sufficient to purchase
the Securities or portions thereof to be purchased on the Purchase Date at the
applicable purchase price and to pay
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as provided above the accrued and unpaid interest thereon, then all obligations
of the Company in respect of such Securities or portions thereof shall cease
and be discharged and the Holders of such Securities shall thereafter be
restricted exclusively to such funds for any and all claims of whatsoever
nature on their part under this Indenture or in respect of such Securities.
SECTION 1011. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Company shall file with the Trustee promptly at the end of
each calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 30 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to
be redeemed, the Redemption Price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount) accrued to the date fixed for
redemption will be paid as specified in such notice, and that on and after that
date interest, if any, thereon or on the portions thereof to be redeemed (or,
in the case of Original Issue Discount Securities, original issue discount)
will cease to accrue. In the case of any redemption of such Securities prior
to the expiration of any restriction on such redemption provided in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If fewer than all the Securities of any series are to be
redeemed (unless all of the Securities of such series issued on the same day
with the same terms are to be redeemed), the particular Securities of such
series to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may
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provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than the Trustee) in writing of the Securities selected for
redemption and, in the case of any securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any such Securities redeemed or to be redeemed
only in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
the Holders of Securities to be redeemed. Failure to give notice by mailing in
the manner herein provided to the Holder of any Registered Securities
designated for redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings for the
redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not such Holder receives the notice.
All notices of redemption shall identify the series of
Securities to be redeemed (including CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if fewer than all the Outstanding Securities of any
series to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
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A notice of redemption published as contemplated by Section
106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay on the Redemption Date the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of
coupons for such interest (at an office or agency located outside the United
States except as otherwise provided in Section 1002), and provided, further,
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the Regular Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender or such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside of the United States except as otherwise provided in Section 1002.
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If any such Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and premium (if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in such Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Security without service charge, a new Security
or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF THIS ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series, if such sinking fund
is established pursuant to Section 301, except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment." If provided for by the terms of any
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
made with respect to the Securities of any series shall be applied to the
redemption of the Securities of such series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series to be made
pursuant to the terms of such Securities as provided for by the terms of such
series (1) deliver Outstanding Securities of such series (other than any of
such Securities previously called for redemption or any of such Securities in
respect of which cash shall have been released to the Company), together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto, and (2) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, provided that
such series of Securities have not been previously so
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credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
1202, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, provided, however,
that the Trustee or such Paying Agent shall at the request of the Company from
time to time pay over and deliver to the Company any cash payment so being held
by the Trustee or such Paying Agent upon delivery by the Company to the Trustee
of Securities of that series purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 30 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
of Securities of that series pursuant to Section 1202, and the optional amount,
if any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE.
If pursuant to Section 301 provision is made for either or
both of (a) defeasance of the Securities of a series under Section 1302 or (b)
covenant defeasance of the Securities of a series under Section 1303, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article Thirteen, shall be applicable to the
Securities of such series, and the Company may at its option by or pursuant to
Board Resolution, at any time, with respect to such Securities of any series,
elect to have either Section 1302 or Section 1303 applied to the
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Outstanding Securities of such series upon compliance with the conditions set
forth in this Article Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
and the Guarantor shall be deemed to have been discharged from their respective
obligations with respect to the Outstanding Securities of such series on the
date the conditions set forth in Section 1304 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company and
the Guarantor shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all their respective other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal
of, premium (if any), and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002, 1003 and Article Fourteen and with respect to the
Trustee under Section 607, (C) the rights, powers, trusts, duties, and
immunities of the Trustee hereunder including pursuant to Section 607 hereof
and (D) this Article Thirteen. Subject to compliance with this Article
Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303 with
respect to such Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
and the Guarantor shall be released from their respective obligations under
Sections 501(5), 1005, 1006, 1007 and 1008 and, if specified pursuant to
Section 301, their respective obligations under any other covenant, with
respect to the Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance")
and such Securities shall thereafter be deemed to be not "Outstanding" for the
purpose of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 501(5), 1005,
1006, 1007 and 1008 or such other covenants, but shall continue to be deemed
Outstanding for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, the Company and the Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of
any reference in any such Section to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Sections 501(4), 501(5), 501(8) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.
-82-
<PAGE> 90
SECTION 1304. CONDITIONS OF DEFEASANCE.
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of or within a
series:
(1) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest, if any, in respect thereof in accordance with
their terms will provide, not later than one day before the due date
of any payment of principal of, premium (if any), and interest, if
any, on such Securities, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of, premium (if any), and each
installment of principal of, premium (if any) and interest, if any, on
the Outstanding Securities of such series on the Stated Maturity of
such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to
the Outstanding Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities.
(2) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default under Sections
501(6) and (7) with respect to any other series of Securities, at any
time during the period ending on the 123rd day after the date of such
deposit or, if longer, ending on the day following the expiration of
the longest preference period applicable to the Company in respect of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to which
the Company or the Guarantor is a party or by which it is bound.
(4) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.
(5) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and will be subject
to federal
-83-
<PAGE> 91
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance has not
occurred.
(6) The Company delivers to the Trustee an Officers'
Certificate stating that all conditions precedent to the defeasance
and discharge of the Securities of such series as contemplated by this
Article Thirteen have been satisfied.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively,
for purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of such series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such 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 Holders of such Securities, of all sums due and to become due
thereon in respect of principal, premium (if any), and interest (if any), but
such money need not be segregated from other funds except to the extend
required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1304 which, in the opinion of a nationally recognized
firm of independent public accounts expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
SECTION 1306. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article Thirteen
by reason of any legal proceeding or by reason of any order or judgment of any
court or government authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and Securities
of the defeased series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Thirteen until such time as the Trustee or
any Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article Thirteen.
-84-
<PAGE> 92
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
SECTION 1401. APPLICABILITY OF ARTICLE.
Securities of any series which are repurchasable before their
Stated Maturity at the option of the Holders shall be repurchasable in
accordance with their terms and (except with respect to any repurchase provided
for in Section 1010, and except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1402. NOTICE OF REPURCHASE DATE.
Notice of any Repurchase Date with respect to Securities of
any series shall, unless otherwise specified by the terms of the Securities of
any series, be given by the Company not less than 30 nor more than 60 days
prior to such Repurchase Date to each Holder of Securities of such series in
accordance with Section 106 (with a copy to the Trustee).
The notice as to Repurchase Date shall state:
(1) the Repurchase Date;
(2) the Repurchase Price;
(3) the place or places where such Securities are to be
surrendered for payment of the Repurchase Price and the date by which
Securities must be so surrendered in order to be repurchased;
(4) a description of the procedure which a Holder must
follow to exercise a repurchase right; and
(5) that exercise of the option to elect repurchase is
irrevocable.
No failure of the Company to give the foregoing notice shall limit any Holder's
right to exercise a repurchase right.
SECTION 1403. DEPOSIT OF REPURCHASE PRICE.
On or prior to the Repurchase Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Repurchase Price of and (unless the
Repurchase Date shall be an Interest Payment Date) accrued interest, if any, on
all of the Securities of such series which are to be repurchased on that date.
-85-
<PAGE> 93
SECTION 1404. SECURITIES PAYABLE ON REPURCHASE DATE.
The form of option to elect repurchase having been delivered
as specified in the form of Security for such series as provided in Section
201, the Securities of such series so to be repurchased shall, on the
Repurchase Date, become due and payable at the Repurchase Price applicable
thereto and from and after such date (unless the Company shall default in the
payment of the Repurchase Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for repurchase in
accordance with said notice, such Security shall be paid by the Company at the
Repurchase Price together with accrued interest to the Repurchase Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to such Repurchase Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any such Security shall not be paid upon surrender thereof
for repurchase, the principal (and premium, if any) shall, until paid, bear
interest from the Repurchase Date at the rate prescribed therefor in such
Security.
SECTION 1405. SECURITIES REPURCHASED IN PART.
Any Security which by its terms may be repurchased in part at
the option of the Holder and which is to be repurchased only in part shall be
surrendered at any office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Security or Securities of the same
series, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unrepurchased
portion of the principal of the Security so surrendered.
ARTICLE FIFTEEN
GUARANTEE AND SUBORDINATION
SECTION 1501. GUARANTEE.
The Guarantor hereby unconditionally guarantees to each Holder
of a Security, and to the Trustee on behalf of each such Holder, the due and
punctual payment of the principal of, premium (if any) and interest on such
Security and the due and punctual payment of any sinking fund payments provided
for pursuant to the terms of such Security when and as the same shall become
due and payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption or otherwise, in accordance with the terms of
such Security and of this Indenture. In case of the failure of the Company
punctually to make any such principal, premium (if any), interest, or sinking
fund payment, the Guarantor hereby agrees to cause any such payment to be made
punctually when
-86-
<PAGE> 94
and as the same shall become due and payable, whether at the Stated Maturity,
by declaration of acceleration, call for redemption or otherwise, and as if
such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder
shall be as if it were principal debtor and not merely surety, and shall be
absolute and unconditional, irrespective of, and unaffected by, any invalidity,
irregularity or unenforceability of any Security of any series or this
Indenture, any failure to enforce the provisions of any Security of any series
or this Indenture, any waiver, modification or indulgence granted to the
Company with respect thereto by the Holder of any Security of any series or the
Trustee, or any other circumstance which may otherwise constitute a legal or
equitable discharge of a surety or guarantor; provided, however, that,
notwithstanding the foregoing, no such waiver, modification, indulgence or
circumstance shall without the consent of the Guarantor increase the principal
amount of a Security or the interest rate thereon or change the currency of
payment with respect to any Security, or alter the Stated Maturity thereof, or
increase the principal amount of any Original Issue Discount Security that
would be due and payable upon a declaration of acceleration or acceleration of
the maturity thereof pursuant to Section 502, or increase any premium payable
upon redemption thereof or increase any sinking fund payment required under
such Security. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to any Security or the indebtedness evidenced
thereby or with respect to any sinking fund payment required pursuant to the
terms of a Security issued under this Indenture and all demands whatsoever, and
covenants that this Guarantee will not be discharged with respect to any
Security except by payment in full of the principal of, premium (if any) and
interest, if any, thereon. If at any time any payment of principal of, premium
(if any) and interest on such Security is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Company, the Guarantor's obligations hereunder with respect to such payment
shall be reinstated as of the date of such rescission, restoration or return as
though such payment had become due but had not been made at such time.
SECTION 1502. SUBORDINATION.
The Guarantor shall not be subrogated to the rights of the
Holder of a Security against the Company in respect of any amounts paid to such
Holder pursuant to the provisions of this Guarantee unless and until the
Guarantor or the Company has made due payment of the principal of, premium (if
any) and interest on each and every other Outstanding Security when the same
becomes due and payable, whether at Stated Maturity, by declaration of
acceleration, call for redemption or otherwise, in accordance with the terms of
such Security and this Indenture.
-87-
<PAGE> 95
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. SECURITIES IN FOREIGN CURRENCIES.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than Dollars shall be
traded for any such action or distribution as that amount of Dollars that could
be obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any) for
such action, determination of rights or distribution (or, if there shall be no
applicable record date, such other date reasonably proximate to the date of
such action, determination of rights or distribution) as the Company may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
ARTICLE SEVENTEEN
CORPORATE OBLIGATION ONLY
SECTION 1701. INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, any supplemental indenture, or in any
Security, because of any indebtedness evidenced thereby, shall be had against
any incorporator, or against any past, present or future shareholder, employee,
officer or director, as such, of the Company or the Guarantor or of any
successor corporation of the Company or the Guarantor, either directly or
through the Company or the Guarantor or any successor corporation of the
Company or the Guarantor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or penalty or by any legal or
equitable proceeding or otherwise, all such liability, whether at common law,
in equity, by any constitution, statute or otherwise, of incorporators,
shareholders, employees, officers or directors being expressly waived and
released by the acceptance of the Securities by the Holders thereof and as part
of the consideration of the issuance of the Securities.
* * * * *
The Bank of New York hereby accepts the trusts in this
Indenture upon the terms and conditions hereinabove set forth.
-88-
<PAGE> 96
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
ANIXTER INC.
the Company
By: ________________________________
Title: President and Chief Executive
Officer
ANIXTER INTERNATIONAL INC.
the Guarantor
By: ________________________________
Title: President and Chief Executive
Officer
THE BANK OF NEW YORK
as Trustee
By: ________________________________
Title:
-89-
<PAGE> 1
EXHIBIT 12
ANIXTER INC.
COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES (IN THOUSANDS,
EXCEPT RATIOS)
<TABLE>
<CAPTION>
Fiscal Year Ended
Six Months ------------------------------------------
Ended
June 28, 1996 1995 1994 1993 1992 1991
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings
Income before income taxes...... $29,420 $ 78,726 $55,400 $27,037 $16,457 $ 6,968
Add: Fixed charges
identified below.......... 21,156 36,407 28,157 36,361 27,799 35,533
------- -------- ------- ------- ------- -------
Adjusted earnings............... $50,576 $115,133 $83,557 $63,398 $44,256 $42,501
======= ======== ======= ======= ======= =======
Fixed Charges
Interest expense................ $15,320 $ 26,507 $20,468 $29,398 $21,562 $28,956
Interest portion of rent
expense....................... 5,836 9,900 7,689 6,963 6,237 6,577
------- -------- ------- ------- ------- -------
Adjusted fixed charges.......... $21,156 $ 36,407 $28,157 $36,361 $27,799 $35,533
======= ======== ======= ======= ======= =======
Ratio of earnings to fixed
charges......................... 2.4 3.2 3.0 1.7 1.6 1.2
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Anixter
International Inc. and Anixter Inc. for the registration of up to $200,000,000
of Anixter Inc. debt securities and to the incorporation by reference therein of
our report dated February 5, 1996 with respect to the consolidated financial
statements and schedules of Anixter International Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
July 29, 1996
<PAGE> 1
EXHIBIT 24.2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned
director of Anixter International Inc., a Delaware corporation (the
"Corporation"), which is going to file a Registration Statement on Form S-3
with the Securities and Exchange Commission under the provisions of the
Securities Exchange Act of 1933, as amended, in connection with debt securities
to be issued by Anixter Inc. and to be guaranteed by the Corporation, hereby
constitutes and appoints Rod F. Dammayer, Dennis J. Letham and James E. Knox
and each of them, her or his true and lawful attorneys-in-fact and agents, with
full power and all capacities, to sign the Corporation's Registration Statement
on Form S-3 and any or all amendments thereto, including any prospectus or
amended prospectus contained therein, and any other documents in connection
therewith, to be filed with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power of authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as she or he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand and seal as of the 8th day of July, 1996.
/s/ Lord James Blyth /s/ Melvyn N. Klein
- -------------------------------- ---------------------------------------
Lord James Blyth Melvyn N. Klein
/s/ Bernard F. Brennan /s/ John R. Petty
- -------------------------------- -----------------------------------------
Bernard F. Brennan John R. Petty
/s/ Rod F. Dammeyer /s/ Sheli Z. Rosenberg
- -------------------------------- ---------------------------------------
Rod F. Dammeyer Sheli Z. Rosenberg
/s/ Robert E. Fowler, Jr. /s/ Stuart M. Sloan
- -------------------------------- ----------------------------------------
Robert E. Fowler, Jr. Stuart M. Sloan
/s/ Robert W. Grubbs /s/ Thomas C. Theobald
- -------------------------------- -------------------------------------
Robert W. Grubbs Thomas C. Theobald
/s/ F. Philip Handy /s/ Samuel Zell
- --------------------------------- -----------------------------------------
F. Philip Handy Samuel Zell
<PAGE> 1
EXHIBIT 25
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
----------------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------------------
ANIXTER INC.
(Exact name of obligor as specified in its charter)
Delaware 36-2361285
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
4711 Golf Road
Skokie, Illinois 60076
(Address of principal executive offices) (Zip code)
ANIXTER INTERNATIONAL INC.
(Exact name of obligor as specified in its charter)
Delaware 94-1658138
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
2 North Riverside Plaza, Suite 1900
Chicago, Illinois 60606
(Address of principal executive offices) (Zip code)
----------------------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
- 2 -
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- 3 -
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 22nd day of July, 1996.
THE BANK OF NEW YORK
By: /S/ PAUL J. SCHMALZEL
--------------------------
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
- 4 -
<PAGE> 5
Exhibit 7
________________________________________________________________________________
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31,
1996, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic of-
fices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,820,159
LESS: Allowance for loan and
lease losses ..............509,817
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing .......7,102,645
Interest-bearing .........11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ..........37,855
Interest-bearing .........10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. ( 5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the
<PAGE> 7
Exhibit 7
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
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