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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report: March 16, 1995
JOHNSON CONTROLS, INC.
(Exact Name of Registrant as Specified in Charter)
Wisconsin 1-5097 39-0380010
(State of Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
5157 North Green Bay Avenue, P.O. Box 591, Milwaukee, WI 53201
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (414) 228-1200
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ITEM 7. EXHIBITS
See Exhibit Index included herewith which is incorporated by reference.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
JOHNSON CONTROLS, INC.
Date: March 16, 1995 By: /s/ Ben C. M. Bastianen
------------------------ ----------------------------
Name: Ben C. M. Bastianen
--------------------------
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL PAGE
NUMBER DESCRIPTION NUMBER
- ------- ----------- ---------------
<S> <C> <C>
1.1 Selling Agency Agreement, dated as of February 22, 1995,
between the Registrant and Salomon Brothers Inc, J.P. Morgan
Securities Inc., Lehman Brothers, Lehman Brothers, Inc. and
BA Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2 Underwriting Agreement, dated as of February 23, 1995,
between the Registrant and Salomon Brothers Inc and J.P.
Morgan Securities Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.1 Indenture, dated as of February 22, 1995,
between the Registrant and Chemical Bank Delaware . . . . . . . . . . . . . . . .
4.2 Forms of Medium-Term Notes, Series C (both fixed
rate and variable rate notes included) . . . . . . . . . . . . . . . . . . . . .
4.3 7.70% Debenture due 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
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EXHIBIT 1.1
Johnson Controls, Inc.
$350,000,000 Medium-Term Notes
Due Nine Months or More
From Date of Issue
Selling Agency Agreement
February 22, 1995
New York, New York
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center
12th Floor
New York, NY 10285
BA Securities, Inc.
233 South LaSalle Street
17th Floor
Chicago, IL 60697
Ladies and Gentlemen:
Johnson Controls, Inc., a Wisconsin corporation (the "Company"),
confirms its agreement with each of you (including in the case of Lehman
Brothers Inc., its affiliate Lehman Government Securities Inc.) with respect to
the issue and sale by the Company of up to $350,000,000 aggregate principal
amount of its Medium-Term Notes Due Nine Months or More from Date of Issue (the
"Notes"). The Notes will be issued under an indenture (the "Indenture") dated
as of February 22, 1995 between the Company and Chemical Bank Delaware, as
trustee (the "Trustee"). Unless otherwise specifically provided for and set
forth in a Pricing Supplement (as defined below), the Notes will be issued in
minimum denominations of $1,000 and in denominations exceeding such amount by
integral multiples of $1,000, will be issued only in fully registered form and
will have the interest rates, maturities and, if applicable, other terms set
forth in such Pricing Supplement. The Notes will be issued, and the terms
thereof established, in accordance with the Indenture and the
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Medium-Term Notes Administrative Procedures attached hereto as Exhibit A (the
"Procedures") (unless a Terms Agreement (as defined in Section 2(b)) modifies
or otherwise supersedes such Procedures with respect to the Notes issued
pursuant to such Terms Agreement). The Procedures may be amended only by
written agreement of the Company and you after notice to, and with the approval
of, the Trustee. For the purposes of this Agreement, the term "Agent" shall
refer to any of you acting solely in the capacity as agent for the Company
pursuant to Section 2(a) and not as principal (collectively, the "Agents"), the
term "Purchaser" shall refer to one of you acting solely as principal pursuant
to Section 2(b) and not as agent, and the term "you" shall refer to you
collectively whether at any time any of you is acting in both such capacities
or in either such capacity. In acting under this Agreement, in whatever
capacity, each of you is acting individually and not jointly.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, you as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (d)
hereof.
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (File Number: 33-57685),
including a basic prospectus, which has become effective, for the
registration under the Act of $350,000,000 aggregate principal amount
of debt securities (the "Securities"), including the Notes. Such
registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(ix) or (x) under
the Act and complies in all other material respects with said Rule or
Release. The Company has included in such registration statement, or
has filed or will file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act, a supplement to the form of
prospectus included in such registration statement relating to the
Notes and the plan of distribution thereof (the "Prospectus
Supplement"). In connection with the sale of Notes the Company
proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the
Prospectus Supplement (each a "Pricing Supplement") specifying the
interest rates, maturity dates and, if appropriate, other similar
terms of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date,
when any supplement to the Prospectus is filed with the Commission,
as of the date of a Terms Agreement and at the date of delivery by
the Company of any Notes sold hereunder
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(a "Closing Date"), (i) the Registration Statement, as amended as of
any such time, and the Prospectus, as supplemented as of any such
time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will not contain any
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;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement
or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by
any of you specifically for inclusion in the Registration Statement
or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold
hereunder, the Indenture will constitute a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect)
and such Notes will have been duly authorized, executed,
authenticated and, when paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture.
(d) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus"
shall mean the form of basic prospectus relating to the Securities
contained in the Registration Statement at the Effective
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Date. "Prospectus" shall mean the Basic Prospectus as supplemented
by the Prospectus Supplement. "Registration Statement" shall mean
the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements,
as amended at the Execution Time. "Rule 415" and "Rule 424" refer to
such rules under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, the Prospectus Supplement
or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
2. Appointment of Agents; Solicitation by the Agents of
Offers to Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms
and conditions set forth herein, the Company hereby authorizes each of the
Agents to act as its agent to solicit offers for the purchase of all or part of
the Notes from the Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the Agents
agrees, as agent of the Company, to use its reasonable efforts to solicit
offers to purchase the Notes from the Company upon the terms and conditions set
forth in the Prospectus (and any supplement thereto) and in the Procedures.
Each Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company, but such Agent shall not, except as
otherwise provided in this Agreement, be obligated to disclose the identity of
any purchaser or have any liability to the Company in the event any such
purchase is not consummated for any reason. Except as provided in Section
2(b), under no circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that any Agent may
purchase Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion,
to instruct the Agents to suspend at any time, for any period of
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time or permanently, the solicitation of offers to purchase Notes. Upon
receipt of instructions from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time as
the Company has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage
specified in Schedule I hereto of the aggregate principal amount of the Notes
sold by the Company. Such commission shall be payable as specified in the
Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent as
agent for the Company at such time and in such amounts as such Agent deems
advisable. The Company may from time to time offer Notes for sale otherwise
than through an Agent; provided, however, that so long as this Agreement is in
effect the Company shall not solicit or accept offers to purchase Notes through
any agent other than an Agent unless (i) such other agent shall have entered
into an agreement with the Company containing terms substantially identical
(including the commission schedule) to those set forth in this Agreement and
(ii) the Company shall provide to each of the Agents notice of any agent that
signs an agreement as provided in the foregoing clause (i).
(b) Subject to the terms and conditions stated herein,
whenever the Company and any of you determines that the Company shall sell
Notes directly to any of you as principal, each such sale of Notes shall be
made in accordance with the terms of this Agreement and a supplemental
agreement relating to such sale. Each such supplemental agreement (which may
be either an oral or written agreement) is herein referred to as a "Terms
Agreement". Each Terms Agreement shall describe the Notes to be purchased by
the Purchaser pursuant thereto and shall specify the aggregate principal amount
of such Notes, the price to be paid to the Company for such Notes, the maturity
date of such Notes, the rate at which interest will be paid on such Notes, the
dates on which interest will be paid on such Notes and the record date with
respect to each such payment of interest, the Closing Date for the purchase of
such Notes, the place of delivery of the Notes and payment therefor, the method
of payment and any requirements for the delivery of opinions of counsel,
certificates from the Company or its officers or a letter from the Company's
independent public accountants as described in Section 6(b). Any such Terms
Agreement may also specify the period of time referred to in Section 4(m). Any
written Terms Agreement may be in the form attached hereto as Exhibit B. The
Purchaser's commitment to purchase Notes shall be deemed to have been made on
the basis of the representations and warranties of the Company herein
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contained and shall be subject to the terms and conditions herein set forth.
Delivery of the certificates for Notes sold to the
Purchaser pursuant to a Terms Agreement shall be made not later than the
Closing Date agreed to in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by the method and
in the form set forth in the Procedures unless otherwise agreed to between the
Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall be
purchased by such Purchaser at a price equal to 100% of the principal amount
thereof less a percentage equal to the commission applicable to an agency sale
of a Note of identical maturity and (ii) may be resold by such Purchaser at
varying prices from time to time or, if set forth in the applicable Terms
Agreement and Pricing Supplement, at a fixed public offering price. In
connection with any resale of Notes purchased, a Purchaser may use a selling or
dealer group and may reallow to any broker or dealer any portion of the
discount or commission payable pursuant hereto.
3. Offering and Sale of Notes. Each Agent and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the
Notes (including by way of resale by a Purchaser of Notes), the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current
reports filed under the Exchange Act, (ii) a supplement relating to
any offering of Notes providing solely for the specification of or a
change in the maturity dates, interest rates, issuance prices or
other similar terms of any Notes or (iii) a supplement relating to an
offering of Securities other than the Notes) unless the Company has
furnished each of you a copy for your review prior to filing and
given each of you a reasonable opportunity to comment on any such
proposed amendment or supplement. Subject to the foregoing sentence,
the Company will cause each supplement to the Prospectus to be filed
with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to you of such filing. The Company will promptly advise
each of you (i) when the Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b),
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(ii) when, prior to termination of any offering of Notes, any
amendment of the Registration Statement shall have been filed or
become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as
a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or to
supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company promptly will (i)
notify each of you to suspend solicitation of offers to purchase
Notes (and, if so notified by the Company, each of you shall
forthwith suspend such solicitation and cease using the Prospectus as
then supplemented), (ii) prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission
or effect such compliance and (iii) supply any supplemented
Prospectus to each of you in such quantities as you may reasonably
request. If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to
paragraph (g) of this Section 4 in connection with the preparation or
filing of such amendment or supplement are satisfactory in all
respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an
amendment to the Registration Statement, if such an amendment is
required, resume your obligation to solicit offers to purchase Notes
hereunder.
(c) The Company, during the period when a prospectus
relating to the Notes is required to be delivered under the Act, will
file promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or
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15(d) of the Exchange Act and will furnish to each of you copies of
such documents. In addition, on or prior to the date on which the
Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be
described, or which the Company proposes to describe, in a document
filed pursuant to the Exchange Act, the Company will furnish to each
of you the information contained or to be contained in such
announcement. The Company also will furnish to each of you copies of
all press releases or announcements furnished to news or wire
services and any other material press releases and announcements.
The Company will immediately notify each of you of (i) any decrease
in the rating of the Notes or any other debt securities of the
Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
or (ii) any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating with negative
implications, as soon as the Company learns of any such decrease or
notice.
(d) As soon as practicable, the Company will make
generally available to its security holders and to each of you an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(e) The Company will furnish to each of you and your
counsel, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus
may be required by the Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of
the Notes for sale under the laws of such jurisdictions as any of you
may designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes, and will arrange for the
determination of the legality of the Notes for purchase by
institutional investors; provided, however, that the Company shall
not be obligated thereby to qualify as a foreign corporation, or to
become subject to taxes, in any jurisdiction in which it is not
currently so qualified or so subject.
(g) The Company shall furnish to each of you such
information, documents, certificates of officers of the Company and
opinions of counsel for the Company relating to the business,
operations and affairs of the Company, the Registration Statement,
the Prospectus, and any amendments thereof or supplements thereto,
the Indenture, the Notes,
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this Agreement, the Procedures and the performance by the Company and
you of its and your respective obligations hereunder and thereunder
as any of you may from time to time and at any time prior to the
termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the
Notes is consummated, (i) pay all expenses incident to the
performance of its obligations under this Agreement and any Terms
Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of
the Registration Statement, the Prospectus, all amendments thereof
and supplements thereto, the Indenture, this Agreement, any Terms
Agreement and all other documents relating to the offering, the cost
of preparing, printing, packaging and delivering the Notes, the fees
and disbursements, including fees of counsel, incurred in compliance
with Section 4(f), the fees and disbursements of the Trustee and the
fees of any agency that rates the Notes and (ii) reimburse each of
you upon written request for all reasonable out-of-pocket expenses,
if any, incurred by you in connection with this Agreement.
(i) Each acceptance by the Company of an offer to
purchase Notes will be deemed to be an affirmation that its
representations and warranties contained in this Agreement are true
and correct at the time of such acceptance, as though made at and as
of such time, and a covenant that such representations and warranties
will be true and correct at the time of delivery to the purchaser of
the Notes relating to such acceptance, as though made at and as of
such time (it being understood that for purposes of the foregoing
affirmation and covenant such representations and warranties shall
relate to the Registration Statement and Prospectus as amended or
supplemented at each such time). Each such acceptance by the Company
of an offer for the purchase of Notes shall be deemed to constitute
an additional representation, warranty and agreement by the Company
that, as of the settlement date for the sale of such Notes, after
giving effect to the issuance of such Notes, of any other Notes to be
issued on or prior to such settlement date and of any other
Securities to be issued and sold by the Company on or prior to such
settlement date, the aggregate amount of Securities (including any
Notes) which have been issued and sold by the Company will not exceed
the amount of Securities registered pursuant to the Registration
Statement. The Company will inform you promptly upon your request of
the aggregate amount of Securities registered under the Registration
Statement which remain unsold.
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(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement relating to any offering of Securities other than the
Notes or providing solely for the specification of or a change in the
maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto), the Company will
deliver or cause to be delivered promptly to each of you a
certificate of the Company, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of
the Company, dated the date of the effectiveness of such amendment or
the date of the filing of such supplement, in form reasonably
satisfactory to you, of the same tenor as the certificate referred to
in Section 5(d) but modified to relate to the last day of the fiscal
quarter for which financial statements of the Company were last filed
with the Commission and to the Registration Statement and the
Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement (i) relating to any offering of Securities other than the
Notes, (ii) providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto or (iii) setting
forth or incorporating by reference financial statements or other
information as of and for a fiscal quarter, unless, in the case of
clause (iii) above, in the reasonable judgment of any of you, such
financial statements or other information are of such a nature that
an opinion of counsel should be furnished), the Company shall furnish
or cause to be furnished promptly to each of you a written opinion of
counsel of the Company reasonably satisfactory to each of you, dated
the date of the effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to each of you, of
the same tenor as the opinion referred to in Section 5(b) but
modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement or, in lieu of such
opinion, counsel last furnishing such an opinion to you may furnish
each of you with a letter to the effect that you may rely on such
last opinion to the same extent as though it were dated the date of
such letter authorizing reliance (except that statements in such last
opinion will be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement).
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(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate
amended or supplemental financial information, the Company shall
cause its independent public accountants promptly to furnish each of
you a letter, dated the date of the effectiveness of such amendment
or the date of the filing of such supplement, in form reasonably
satisfactory to each of you, of the same tenor as the letter referred
to in Section 5(e) with such changes as may be necessary to reflect
the amended and supplemental financial information included or
incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented to the date of such letter;
provided, however, that, if the Registration Statement or the
Prospectus is amended or supplemented solely to include or
incorporate by reference financial information as of and for a fiscal
quarter, the Company's independent public accountants may limit the
scope of such letter, which shall be reasonably satisfactory in form
to each of you, to the unaudited financial statements, the related
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," the information contained in the updated
Exhibit 12 to the Registration Statement and any other information of
an accounting, financial or statistical nature included in such
amendment or supplement, unless, in the reasonable judgment of any of
you, such letter should cover other information or changes in
specified financial statement line items. The Company shall not be
required to comply with the provisions of this Section 4(1) during
any period (which may occur from time to time during the term of this
Agreement) for which the Company has instructed the Agents to suspend
the solicitation of offers to purchase Notes; provided that, during
any such period, any Purchaser does not then hold any Notes pursuant
to a Terms Agreement. The Company shall be required to comply with
the provisions of this Section 4(1) prior to instructing the Agents
to resume the solicitation of offers to purchase Notes or prior to
entering into a Terms Agreement.
(m) During the period, if any, specified (whether orally
or in writing) in any Terms Agreement, the Company shall not, without
the prior consent of the Purchaser thereunder, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities issued or guaranteed by
the Company (other than the Notes being sold pursuant to such Terms
Agreement).
(n) The Company confirms as of the date hereof, and each
acceptance by the Company of an offer to purchase Notes will be
deemed to be an affirmation, that the Company is in
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compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information
reported in the Prospectus, if any, concerning the Company's business
with Cuba or with any person or affiliate located in Cuba changes in
any material way, the Company will provide the Department notice of
such business or change, as appropriate, in a form acceptable to the
Department.
(o) Each time that the Registration Statement or the
Prospectus is amended or supplemented by means of the filing of the
Company's Quarterly Report on Form 10-Q, the Company shall include
with such filing an update to Exhibit 12 to the Registration
Statement.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase the Notes shall be
subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time, on the Effective Date,
when any supplement to the Prospectus is filed with the Commission and as of
each Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any
such supplement, shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened.
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(b) The Company shall have furnished to each Agent the
opinion of John P. Kennedy, Esq., Vice President, Secretary and
General Counsel of the Company, or other counsel reasonably
satisfactory to each Agent, dated the Execution Time, to the effect
that:
(i) each of the Company and each of its
subsidiaries that is a "Significant Subsidiary" of the
Company as that term is defined in Regulation S-X of the
Commission (individually a "Subsidiary" and collectively
the "Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own
its properties and conduct its business as described in
the Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the
laws of each jurisdiction which requires such
qualification wherein it owns or leases material
properties or conducts material business;
(ii) all the outstanding shares of capital
stock of each Subsidiary have been duly and validly
authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of
the Subsidiaries are owned by the Company either directly
or through wholly owned subsidiaries free and clear of
any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity
capitalization is as set forth in the Prospectus; and the
Notes conform to the description thereof contained in the
Prospectus (subject to the insertion in the Notes of the
maturity dates, the interest rates and other similar
terms thereof which will be described in supplements to
the Prospectus as contemplated by the fourth sentence of
Section 1(a) of this Agreement);
(iv) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect); and the
Notes have been duly authorized
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<PAGE> 14
and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid
for by the purchasers thereof, will constitute legal,
valid and binding obligations of the Company entitled to
the benefits of the Indenture;
(v) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company
or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character
required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and the statements
included or incorporated by reference in the Prospectus
describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such
matters;
(vi) the Registration Statement has become
effective under the Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been or will be made in the manner and within
the time period required by Rule 424(b); to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or threatened; and the Registration Statement
and the Prospectus (other than the financial statements
and other financial and statistical information contained
therein as to which such counsel need express no opinion)
comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe
that the Registration Statement at the Effective Date or
at the Execution Time contained any untrue statement of a
material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
includes any untrue statement of a material fact or omits
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading;
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<PAGE> 15
(vii) this Agreement has been duly
authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein except such as have been obtained
under the Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the sale
of the Notes as contemplated by this Agreement and such
other approvals (specified in such opinion) as have been
obtained;
(ix) neither the execution and delivery of
the Indenture, the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or
by-laws of the Company or the terms of any indenture or
other agreement or instrument known to such counsel and
to which the Company or any of its subsidiaries is a
party or bound or any judgment, order, regulation or
decree known to such counsel to be applicable to the
Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company or any
of its subsidiaries; and
(x) no holders of securities of the Company
have rights to the registration of such securities under
the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Wisconsin or the United States, to the extent deemed proper
and specified in such opinion, upon the opinion of other counsel of
good standing believed to be reliable and who are satisfactory to
counsel for the Agent and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company
and public officials. References to the Prospectus in this paragraph
(b) include any supplements thereto at the date such opinion is
rendered.
(c) Each Agent shall have received from Mayer, Brown &
Platt (or other counsel satisfactory to the Agents), counsel for the
Agents, such opinion or opinions, dated the date hereof, with respect
to the issuance and sale of the Notes, the Indenture, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related
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<PAGE> 16
matters as the Agents may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of
the Company, dated the Execution Time, to the effect that the signers
of such certificate have carefully examined the Registration
Statement, the Prospectus, any supplement to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the date hereof with the
same effect as if made on the date hereof and the Company
has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied
as a condition to the obligation of the Agents to solicit
offers to purchase the Notes;
(ii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened;
and
(iii) since the date of the most recent
financial statements included in the Prospectus
(exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or
other), earnings, business or properties of the Company
and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(e) At the Execution Time, Price Waterhouse LLP shall
have furnished to each Agent a letter or letters (which may refer to
letters previously delivered to the Agents), dated as of the
Execution Time, in form and substance satisfactory to the Agents,
confirming that they are independent accountants within the meaning
of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect
that:
(i) in their opinion the audited financial
statements, financial statement schedules and pro forma
financial statements, if any, included or incorporated in
the Registration Statement and the Prospectus and
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<PAGE> 17
reported on by them comply in form in all material
respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the
Company and its subsidiaries; carrying out certain
specified procedures (but not an examination in
accordance with generally accepted auditing standards)
which would not necessarily reveal matters of
significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of
the stockholders, directors and committees of the Company
and the Subsidiaries; and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to the date of the
most recent audited financial statements included or
incorporated in the Prospectus, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the
published rules and regulations of the
Commission with respect to financial
statements included or incorporated in
quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited financial
statements are not in conformity with
generally accepted accounting principles
applied on a basis substantially consistent
with that of the audited financial statements
included or incorporated in the Registration
Statement and the Prospectus;
(2) with respect to the period
subsequent to the date of the most recent
financial statements (other than any capsule
information), audited or unaudited, included
or incorporated in the Registration Statement
and the Prospectus, there were any changes,
at a specified date not more than five
business days prior to the date of the
letter, or such other date mutually agreed
upon by the Company and the Agents, in the
long-term debt of the Company and its
subsidiaries or capital stock of the Company
or decreases in the stockholders' equity of
the Company as compared
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<PAGE> 18
with the amounts shown on the most recent
consolidated balance sheet included or
incorporated in the Registration Statement
and the Prospectus, or for the period from
the date of the most recent financial
statements included or incorporated in the
Registration Statement and the Prospectus to
such specified date there were any decreases,
as compared with the corresponding period in
the preceding year in net revenues or income
before income taxes or in total or per share
amounts of net income of the Company and its
subsidiaries, except in all instances for
changes or decreases set forth in such
letter, in which case the letter shall be
accompanied by an explanation by the Company
as to the significance thereof unless said
explanation is not deemed necessary by the
Agents; or
(3) the amounts included in any
unaudited "capsule" information included or
incorporated in the Registration Statement
and the Prospectus do not agree with the
amounts set forth in the unaudited financial
statements for the same periods or were not
determined on a basis substantially
consistent with that of the corresponding
amounts in the audited financial statements
included or incorporated in the Registration
Statement and the Prospectus;
(iii) they have performed certain other
specified procedures as a result of which they determined
that certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and
the Prospectus and in Exhibit 12 to the Registration
Statement, including the information included or
incorporated in the specified Items of the Company's
Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Prospectus, agrees with
the accounting records of the Company and its
subsidiaries, excluding any questions of legal
interpretation; and
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<PAGE> 19
(iv) if unaudited pro forma financial
statements are included or incorporated in the
Registration Statement and the Prospectus, on the basis
of a reading of the unaudited pro forma financial
statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the
acquired company who have responsibility for financial
and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments
to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused
them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements.
References to the Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to such Agents and counsel for the Agents,
this Agreement and all obligations of any Agent hereunder may be cancelled at
any time by the Agents. Notice of such cancellation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5
shall be delivered at the office of Mayer, Brown & Platt, 190 South LaSalle
Street, Chicago, Illinois 60603, on the date hereof (or the office of other
counsel designated by and satisfactory to the Purchaser).
6. Conditions to the Obligations of a Purchaser. The
obligations of a Purchaser to purchase any Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein as of the date of the related Terms Agreement and as of the Closing Date
for such Notes, to the performance and observance by the Company of all
covenants and
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<PAGE> 20
agreements herein contained on its part to be performed and observed and to the
following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of
the Closing Date, to the effect set forth in Section 5(d) (except
that references to the Prospectus shall be to the Prospectus as
supplemented as of the date of such Terms Agreement), (ii) the
opinion of John P. Kennedy, Esq., Vice President, Secretary and
General Counsel of the Company, or other counsel reasonably
satisfactory to the Purchaser, dated as of the Closing Date, to the
effect set forth in Section 5(b), (iii) the opinion of Mayer, Brown &
Platt (or other counsel satisfactory to the Purchaser), counsel for
the Purchaser, dated as of the Closing Date, to the effect set forth
in Section 5(c), and (iv) letter of Price Waterhouse LLP, independent
accountants for the Company, dated as of the Closing Date, to the
effect set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and as provided in
this Agreement and the applicable Terms Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement or such Terms
Agreement and required to be delivered to the Purchaser pursuant to the terms
hereof and thereof shall not be in all material respects reasonably
satisfactory in form and substance to the Purchaser and its counsel, such Terms
Agreement and all obligations of the Purchaser thereunder and with respect to
the Notes subject thereto may be cancelled at, or at any time prior to, the
respective Closing Date by the Purchaser. Notice of such cancellation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. (a) The Company agrees that any person who has agreed to purchase
and pay for any Note pursuant to a solicitation by any of the Agents shall have
the right to refuse to purchase such
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<PAGE> 21
Note if, at the Closing Date therefor, any condition set forth in Section 5 or
6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of Sections 9(b)(i) through (v) shall have occurred (with the judgment
of the Agent which presented the offer to purchase such Note being substituted
for any judgment of a Purchaser required therein) the effect of which is, in
the judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the sale and delivery of such Note (it being understood that under no
circumstance shall any such Agent have any duty or obligation to the Company or
to any such person to exercise the judgment permitted to be exercised under
this Section 7(b) and Section 9(b)).
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each of you, the directors, officers,
employees and agents of each of you and each person who controls each of you
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which you, they or
any of you or them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Prospectus or any preliminary Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by any of you specifically for inclusion therein and
(ii) such indemnity with respect to the Prospectus or any preliminary
Prospectus shall not inure to the benefit of any of you (or any person
controlling any of you) from whom the person asserting any
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<PAGE> 22
such loss, claim or damage or liability purchased the Notes which are the
subject thereof (or the Prospectus as supplemented) excluding documents
incorporated therein by reference at or prior the confirmation of the sale of
such Notes to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in the
Prospectus or any preliminary Prospectus was corrected in the Prospectus (or
the Prospectus as supplemented). This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each of you agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to you, but only with reference to written
information relating to such of you furnished to the Company by such of you
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
you may otherwise have. The Company acknowledges that the statements set forth
in the last paragraph of the cover page, and under the heading "Plan of
Distribution", of the Prospectus Supplement constitute the only information
furnished in writing by any of you for inclusion in the documents referred to
in the foregoing indemnity, and you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in
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<PAGE> 23
an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel (provided,
however, that the indemnifying party shall not be liable for the fees, costs or
expenses of more than one separate counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company and each of you
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of you may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by each of you from
the offering of the Notes from which such Losses arise; provided, however, that
in no case shall any of you be responsible for any amount in excess of the
commissions received by such of you in connection with the sale of Notes from
which such Losses arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such of
you if such commissions had been payable). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
each of you shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company and
of each of you in
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<PAGE> 24
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) of the Notes from which such Losses arise, and
benefits received by each of you shall be deemed to be equal to the total
commissions received by such of you in connection with the sale of Notes from
which such Losses arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such of
you if such commissions had been payable). Relative fault shall be determined
by reference to whether any alleged untrue statement or omission relates to
information provided by the Company or any of you. The Company and each of you
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls
any of you within the meaning of the Act or the Exchange Act and each director,
officer, employee and agent of any of you shall have the same rights to
contribution as you and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
the applicable terms and conditions of this paragraph (d).
9. Termination. (a) This Agreement will continue in
effect until terminated as provided in this Section 9. This Agreement may be
terminated either by the Company as to any Agent or by any of you insofar as
this Agreement relates to any Agent, by giving written notice of such
termination to such Agent or the Company, as the case may be. This Agreement
shall so terminate at the close of business on the first business day following
the receipt of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to the other party
hereto, except as provided in the fourth paragraph of Section 2(a), Section
4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination
in the absolute discretion of the Purchaser, by notice given to the Company
prior to delivery of any payment for any Note to be purchased thereunder, if
prior to such time (i) there shall have occurred, subsequent to the agreement
to purchase such Note, any change, or any development involving a
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<PAGE> 25
prospective change, in or affecting the business or properties of the Company
and its subsidiaries the effect of which is, in the judgment of the Purchaser,
so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of such Note, (ii) there shall have been,
subsequent to the agreement to purchase such Note, any decrease in the rating
of any of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act) or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating with negative implications,
(iii) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (iv) a banking moratorium
shall have been declared by either Federal or New York State authorities or (v)
there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the judgment of the Purchaser, impracticable or inadvisable to proceed
with the offering or delivery of such Notes as contemplated by the Prospectus
(exclusive of any supplement thereto).
10. Survival of Certain Provisions. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the directors, officers,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of Sections
4(h) and 8 hereof shall survive the termination or cancellation of this
Agreement. The provisions of this Agreement (including without limitation
Section 7 hereof) applicable to any purchase of a Note for which an agreement
to purchase exists prior to the termination hereof shall survive any
termination of this Agreement. If at the time of termination of this Agreement
any Purchaser shall own any Notes with the intention of selling them, the
provisions of Section 4 shall remain in effect until such Notes are sold by the
Purchaser.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to any of you, will be
mailed, delivered, facsimiled or telegraphed and confirmed to such of you, at
the address specified in Schedule I hereto; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 5757 North Green Bay
Avenue, Milwaukee, Wisconsin 53209, attention of the Secretary.
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<PAGE> 26
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto, their respective successors,
the directors, officers, employees, agents and controlling persons referred to
in Section 8 hereof and, to the extent provided in Section 7, any person who
has agreed to purchase Notes, and no other person will have any right or
obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and you.
Very truly yours,
Johnson Controls, Inc.
By: /s/ Stephen A. Roell
---------------------------
Vice-President
By: /s/ Ben C. M. Bastianen
---------------------------
Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Salomon Brothers Inc
By:
/s/ Anne Clarke-Wolff
------------------------
Vice President
J.P. Morgan Securities Inc.
By:
/s/ Raymond Schmitt
------------------------
Vice President
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Lehman Brothers
Lehman Brothers Inc.
By:
/s/ Herbert McDade
------------------------
Managing Director
BA Securities, Inc.
By:
/s/ James J. Baldino
------------------------
Managing Director
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SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal
to the following percentage of the principal amount of each Note sold on an
agency basis by such Agent:
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
More than nine months to less than twelve months .125%
Twelve months to less than eighteen months .150
Eighteen months to less than two years .200
Two years to less than three years .250
Three years to less than four years .350
Four years to less than five years .450
Five years to less than six years .500
Six years to less than seven years .550
Seven years to less than ten years .600
Ten years to less than fifteen years .625
Fifteen years to less than twenty years .700
Twenty years to and including thirty years .750
Thirty years or more Negotiated at the
Time of Sale
</TABLE>
Unless otherwise specified in the applicable Terms Agreement, the
discount or commission payable to a Purchaser shall be determined on the basis
of the commission schedule set forth above.
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Address for Notice to you:
Notices to Salomon Brothers Inc shall be directed to it at
Seven World Trade Center, New York, NY 10048, Attention of the Medium-Term Note
Department.
Notices to J.P. Morgan Securities Inc. shall be directed to it
at 60 Wall Street, New York, NY 10260, Attention of the Medium- Term Note
Department.
Notices to Lehman Brothers, Lehman Brothers Inc. shall be
directed to it at 3 World Financial Center, 12th Floor, New York, NY 10285,
Attention of the Medium-Term Note Deparment.
Notices to BA Securities, Inc. shall be directed to it at 233
South LaSalle Street, 17th Floor, Chicago, IL 60697, Attention of Corporate
Bond Syndicate Desk and Andrew J. McCarthy, Managing Director.
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EXHIBIT A
JOHNSON CONTROLS, INC.
Medium-Term Note Administrative Procedures
February 22, 1995
The Medium-Term Notes, Series C, Due Nine Months or More from
Date of Issue (the "Notes") of Johnson Controls, Inc. (the "Company") are to be
offered on a continuing basis. Salomon Brothers Inc, J.P. Morgan Securities
Inc., Lehman Brothers, Lehman Brothers Inc. and BA Securities, Inc., as agents
(each an "Agent"), have agreed to solicit purchases of Notes issued in fully
registered form. The Agents will not be obligated to purchase Notes for their
own account. The Notes are being sold pursuant to a Selling Agency Agreement
between the Company and the agents named therein (including the Agents) dated
the date hereof (the "Agency Agreement"). The Notes will rank equally with all
other unsecured and unsubordinated debt of the Company and have been registered
with the Securities and Exchange Commission (the "Commission"). The Notes will
be issued under an Indenture dated as of February 22, 1995 (the "Indenture"),
between the Company and Chemical Bank Delaware, as trustee (the "Trustee").
The Agency Agreement provides that Notes may also be purchased
by an Agent acting solely as principal and not as agent. In the event of any
such purchase, the functions of both the Agent and the beneficial owner under
the administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to Chemical Bank ("Chemical"), as agent for The
Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate delivered to the
Holder thereof or a Person designated by such Holder (a "Certificated Note").
Only Notes denominated and payable in U.S. dollars may be issued as Book-Entry
Notes. An owner of a Book-Entry Note will not be entitled to receive a
certificate representing such Note.
The procedures to be followed during, and the specific terms
of, the solicitation of orders by the Agents and the sale as a result thereof
by the Company are explained below. Administrative and record-keeping
responsibilities will be handled for the Company by its Treasury Department.
The Company will advise the Agents and the Trustee in writing of those
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persons handling administrative responsibilities with whom the Agents and the
Trustee are to communicate regarding orders to purchase Notes and the details
of their delivery.
Administrative procedures and specific terms of the offering
are explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Indenture and
the Notes shall be used herein as therein defined. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero, are
referred to herein as "Fixed Rate Notes". Notes for which interest is
calculated on the basis of a floating interest rate are referred to herein as
"Floating Rate Notes". To the extent the procedures set forth below conflict
with the provisions of the Notes, the Indenture, DTC's operating requirements
or the Agency Agreement, the relevant provisions of the Notes, the Indenture,
DTC's operating requirements and the Agency Agreement shall control.
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<PAGE> 32
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, Chemical Bank
("Chemical") will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under
a Letter of Representation from the Company and Chemical to DTC dated as of the
date hereof and a Medium-Term Note Certificate Agreement between Chemical and
DTC and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement system ("SDFS").
Issuance: On any date of settlement (as defined
under "Settlement" below) for one or more
Book-Entry Notes, the
Company will issue a single global
security in fully registered form without
coupons (a "Global Security") representing
up to $150,000,000 principal amount of all
such Book-Entry Notes that have the same
original issue date, original issue
discount provisions, if any, Interest
Payment Dates, Regular Record Dates,
Interest Payment Period, redemption,
repayment and extension provisions, if
any, Maturity Date, and, in the case of
Fixed Rate Notes, interest rate, or, in
the case of Floating Rate Notes, initial
interest rate, Base Rate, Index Maturity,
Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier, if
any, minimum interest rate, if any, and
maximum interest rate, if any
(collectively, the "Terms"). Each Global
Security will be dated and issued as of
the date of its authentication by the
Trustee. Each Global Security will bear
an original issue date, which will be (i)
with respect to an original Global
Security (or any portion thereof), the
original issue date specified in such
Global Security and (ii) following a
consolidation of Global Securities, with
respect to the Global Security resulting
from such consolidation, the most recent
Interest Payment Date to which interest
has been paid or duly provided for on the
predecessor Global Securities, regardless
of the date of authentication of such
resulting Global Security. No Global
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<PAGE> 33
Security will represent (i) both Fixed
Rate and Floating Rate Book-Entry Notes or
(ii) any Certificated Note.
Identification The Company has arranged with the
Numbers: CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau")
for the reservation of a series of CUSIP
numbers, which series consists of
approximately 900 CUSIP numbers and
relates to Global Securities representing
Book-Entry Notes and book-entry
medium-term notes issued by the
Company with other series designations.
Chemical, the Company and DTC have
obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP
numbers. The Company will assign CUSIP
numbers to Global Securities as described
below under Settlement Procedure "B". DTC
will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the
Company has assigned to Global Securities.
Chemical will notify the Company at any
time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global
Securities, and, if it deems necessary ,
the Company will reserve additional CUSIP
numbers for assignment to Global
Securities. Upon obtaining such
additional CUSIP numbers, the Company
shall deliver a list of such additional
CUSIP numbers to Chemical and DTC.
Registration: Global Securities will be issued only in
fully registered form without coupons.
Each Global Security will be registered
in the name of CEDE & CO., as nominee for
DTC, on the securities register for the
Notes maintained under the Indenture.
The beneficial owner of a Book-Entry Note
(or one or more indirect participants in
DTC designated by such owner) will
designate one or more participants in DTC
(with respect to such Book-Entry Note,
the "Participants") to act as agent or
agents for such owner in connection with
the book-entry system maintained by DTC,
and DTC will record in book-entry form,
in accordance with instructions provided
by such Participants, a credit balance
with respect to such beneficial owner in
such
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<PAGE> 34
Book-Entry Note in the account of such
Participants. The ownership interest of
such beneficial owner (or such
participant) in such Book-Entry Note will
be recorded through the records of such
Participants or through the separate
records of such Participants and one or
more indirect participants in DTC;
provided, however, so long as DTC is the
registered owner of a Note, DTC will be
the sole owner and holder of the
Book-Entry Note represented by such Global
Security for all purposes under the
Indenture.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferors and transferees of
such Note.
Exchanges: Chemical may deliver to DTC and the CUSIP
Service Bureau at any time a written
notice of consolidation (a copy of which
shall be attached to the resulting Global
Security described below) specifying (i)
the CUSIP numbers of two or more
outstanding Global Securities that
represent (A) Fixed Rate Book-Entry Notes
having the same Terms and for which
interest has been paid to the same date or
(B) Floating Rate Book-Entry Notes having
the same Terms and for which interest has
been paid to the same date, (ii) a date,
occurring at least thirty days after such
written notice is delivered and at least
thirty days before the next Interest
Payment Date for such Book-Entry Notes, on
which such Global Securities shall be
exchanged for a single replacement Global
Security and (iii) a new CUSIP number,
obtained from the Company, to be assigned
to such replacement Global Security. Upon
receipt of such a notice, DTC will send to
its participants (including Chemical) a
written reorganization notice to the
effect that such exchange will occur on
such date. Prior to the specified
exchange date, Chemical will deliver to
the CUSIP Service Bureau a written notice
setting forth such
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<PAGE> 35
exchange date and such new CUSIP number
and stating that, as of such exchange
date, the CUSIP numbers of the Global
Securities to be exchanged will no longer
be valid. On the specified exchange date,
Chemical will exchange such Global
Securities for a single Global Security
bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Securities
will, in accordance with CUSIP Service
Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding
the foregoing, if the Global Securities to
be exchanged exceed $150,000,000 in
aggregate principal amount, one Global
Security will be authenticated and issued
to represent each $150,000,000 of
principal amount of the exchanged Global
Securities and an additional Global
Security will be authenticated and issued
to represent any remaining principal
amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date
not less than nine months after the
original issue date for such Note. A
Floating Rate Book-Entry Note will mature
only on an Interest Payment Date for such
Note.
Denominations: Book-Entry Notes will be issued in
principal amounts of $1,000 or any amount
in excess thereof that is an integral
multiple of $1,000. Global Securities
will be denominated in principal amounts
not in excess of $150,000,000. If one
or more Book-Entry Notes having an
aggregate principal amount in excess of
$150,000,000 would, but for the preceding
sentence, be represented by a single Global
Security, then one Global Security will be
authenticated and issued to represent each
$150,000,000 principal amount of such
Book-Entry Note or Notes and an additional
Global Security will be authenticated and
issued to represent any remaining principal
amount of such Book-Entry Note or Notes.
In such a case, each of the Global
Securities representing such Book-Entry
Note or Notes shall be assigned the same
CUSIP number.
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<PAGE> 36
Interest: General. Interest, if any, on each
Book-Entry Note will accrue from the
Original Issue Date for the first
interest period or the last date to which
interest has been paid, if any, for each
subsequent interest period, on the Global
Security representing such Book-Entry
Note, and will be calculated and paid in
the manner described in such Book-Entry
Note and in the Prospectus (as defined in
the Agency Agreement), as supplemented by
the applicable Pricing Supplement. Unless
otherwise specified therein, each payment
of interest on a Book-Entry Note will
include interest accrued to but excluding
the Interest Payment Date (provided that,
in the case of Floating Rate Book-Entry
Notes which reset daily or weekly,
interest payments will include accrued
interest to but excluding the Regular
Record Date immediately preceding the
Interest Payment Date) or to but excluding
Maturity (other than a Maturity of a Fixed
Rate Book-Entry Note occurring on the 31st
day of a month, in which case such payment
of interest will include interest accrued
to but excluding the 30th day of such
month. Interest payable at the Maturity
of a Book-Entry Note will be payable to
the Person to whom the principal of such
Note is payable. Standard & Poor's
Corporation will use the information
received in the pending deposit message
described under Settlement Procedure "C"
below in order to include the amount of
any interest payable and certain other
information regarding the related Global
Security in the appropriate (daily or
weekly) bond report published by Standard
& Poor's Corporation.
Regular Record Dates. The Regular Record
Date with respect to any Interest Payment
Date shall be the date fifteen calendar
days immediately preceding such Interest
Payment Date (whether or not a Business
Date).
Interest Payment Dates on Fixed Rate
Book-Entry Notes. Unless otherwise
specified pursuant to Settlement Procedure
"A" below, interest payments on Fixed Rate
Book-Entry
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<PAGE> 37
Notes will be made semiannually on June 1
and December 1 of each year and at
Maturity; provided, however, that if an
Interest Payment Date for a Fixed Rate
Book-Entry Note is not a Business Day, the
payment due on such day shall be made on
the next succeeding Business Day and no
interest shall accrue on such payment for
the period from and after such Interest
Payment Date; provided further, that in
the case of a Fixed Rate Book-Entry Note
issued between a Regular Record Date and
an Interest Payment Date, the first
interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Interest Payment Dates on Floating Rate
Book-Entry Notes. Interest payments will
be made on Floating Rate Book-Entry Notes
monthly, quarterly, semi-annually or
annually. Unless otherwise agreed upon,
interest will be payable, in the case of
Floating Rate Book-Entry Notes with a
monthly Interest Payment Period, on the
third Wednesday of each month; with a
quarterly Interest Payment Period, on the
third Wednesday of March, June, September
and December of each year; with a
semi-annual Interest Payment Period on the
third Wednesday of the two months
specified pursuant to Settlement Procedure
"A" below; and with an annual Interest
Payment Period, on the third Wednesday of
the month specified pursuant to Settlement
Procedure "A" below; provided, however,
that if an Interest Payment Date for a
Floating Rate Book-Entry Note would
otherwise be a day that is not a Business
Day with respect to such Floating Rate
Book-Entry Note, such Interest Payment
Date will be the next succeeding Business
Day with respect to such Floating Rate
Book-Entry Note, except in the case of a
Floating Rate Book-Entry Note for which
the Base Rate is LIBOR, if such Business
Day is in the next succeeding calendar
month, such Interest Payment Date will be
the immediately preceding Business Day;
and provided further, that in the case of
a Floating Rate Book- Entry Note issued
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between a Regular Record Date and an
Interest Payment Date, the first interest
payment will be made on the Interest
Payment Date following the next succeeding
Regular Record Date.
Notice of Interest Payment and Regular
Record Dates. On the first Business Day
of January, April, July and October of
each year, Chemical will deliver to the
Company and DTC a written list of Regular
Record Dates and Interest Payment Dates
that will occur with respect to Book-Entry
Notes during the six-month period
beginning on such first Business Day.
Promptly after each Interest Determination
Date for Floating Rate Book-Entry Notes,
Chemical, as Calculation Agent, will
notify Standard & Poor's Corporation of
the interest rates determined on such
Interest Determination Date.
Calculation of Fixed Rate Book-Entry Notes. Interest
Interest: on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be
calculated on the basis of a 360-day year
of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest
rates on Floating Rate Book-Entry Notes
will be determined as set forth in the
form of Notes. Interest on Floating Rate
Book-Entry Notes, except as otherwise set
forth therein, will be calculated on the
basis of actual days elapsed and a year of
360 days, except that in the case of a
Floating Rate Book-Entry Note for which
the Base Rate is Treasury Rate, interest
will be calculated on the basis of the
actual number of days in the year.
Payments of Payment of Interest Only. Promptly
Principal and after each Regular Record Date, Chemical
Interest: will deliver to the Company and DTC a
written notice setting forth, by CUSIP
number, the amount of interest to be paid
on each Global Security on the following
Interest Payment Date (other than an
Interest Payment Date coinciding with
Maturity) and the total of such amounts.
DTC will confirm the amount payable on each
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Global Security on such Interest Payment
Date by reference to the appropriate
(daily or weekly) bond reports published
by Standard & Poor's Corporation. The
Company will pay to Chemical, as paying
agent, the total amount of interest due on
such Interest Payment Date (other than at
Maturity), and Chemical will pay such
amount to DTC, at the times and in the
manner set forth below under "Manner of
Payment". If any Interest Payment Date
for a Book-Entry Note is not a Business
Day, the payment due on such day shall be
made on the next succeeding Business Day
and no interest shall accrue on such
payment for the period from and after such
Interest Payment Date.
Payments at Maturity. On or about the
first Business Day of each month, Chemical
will deliver to the Company, DTC and the
Trustee a written list of principal and
interest to be paid on each Global
Security maturing (on a Maturity or
Redemption Date or otherwise) in the
following month. Chemical, the Company
and DTC will confirm the amounts of such
principal and interest payments with
respect to each such Global Security on or
about the fifth Business Day preceding the
Maturity of such Global Security. On or
before Maturity, the Company will pay to
Chemical, as paying agent, the principal
amount of such Global Security, together
with interest due at such Maturity.
Chemical will pay such amount to DTC at
the times and in the manner set forth
below under "Manner of Payment". If any
Maturity of a Global Security representing
Book- Entry Notes is not a Business Day,
the payment due on such day shall be made
on the next succeeding Business Day and no
interest shall accrue on such payment for
the period from and after such Maturity.
Promptly after payment to DTC of the
principal and interest due at Maturity of
such Global Security, the Trustee will
cancel such Global Security in accordance
with the Indenture and so advise the
Company. On the first Business Day of
each month, Chemical will deliver to the
Trustee a
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written statement indicating the total
principal amount of Outstanding Global
Securities as of the immediately preceding
Business Day. If the Maturity of a
Book-Entry Note is not a Business Day, the
payment due on such day shall be made on
the next succeeding Business Day and no
interest shall accrue on such payment for
the period from and after such Maturity.
Manner of Payment. The total amount of
any principal and interest due on Global
Securities on any Interest Payment Date or
at Maturity shall be paid by the Company
to Chemical in immediately available funds
no later than such time required by
Chemical on such date. The Company will
make such payment on such Global
Securities by wire transfer or automated
clearing house to Chemical. The Company
will confirm any such instructions in
writing to Chemical. Prior to 10 A.M.
(New York City time) on the date of
Maturity or as soon as possible
thereafter, Chemical will pay by separate
wire transfer (using Fedwire message entry
instructions in a form previously
specified by DTC) to an account at the
Federal Reserve Bank of New York
previously specified by DTC, in funds
available for immediate use by DTC, each
payment of principal (together with
interest thereon) due on a Global Security
on such date. On each Interest Payment
Date (other than at Maturity), interest
payments shall be made to DTC, in funds
available for immediate use by DTC, in
accordance with existing arrangements
between Chemical and DTC. On each such
date, DTC will pay, in accordance with its
SDFS operating procedures then in effect,
such amounts in funds available for
immediate use to the respective
Participants in whose names the Book-Entry
Notes represented by such Global
Securities are recorded in the book-entry
system maintained by DTC. None of the
Company (as issuer or as paying agent),
the Trustee or Chemical shall have any
direct responsibility or liability for the
payment by DTC to such Participants of the
principal of and interest on the
Book-Entry Notes.
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Withholding Taxes. The amount of any
taxes required under applicable law to be
withheld from any interest payment on a
Book-Entry Note will be determined and
withheld by the Participant, indirect
participant in DTC or other Person
responsible for forwarding payments and
materials directly to the beneficial owner
of such Note.
Procedures upon Company Notice to Trustee Regarding
Company's Exercise of Optional Redemption.
Exercise of At least 45 days prior to the date on
Optional which it intends to redeem a Book-
Redemption: Entry Note, the Company will notify the
Trustee that it is exercising such option
with respect to such Book-Entry Note on
such date.
Trustee Notice to DTC Regarding Company's
Exercise of Optional Redemption. After
receipt of notice that the Company is
exercising its option to redeem a
Book-Entry Note, the Trustee will, at
least 30 days before the redemption date
for such Book-Entry Note, hand deliver to
DTC a notice identifying such Book- Entry
Note by CUSIP number and informing DTC of
the Company's exercise of such option with
respect to such Book-Entry Note.
Deposit of Redemption Price. On or before
any redemption date, the Company shall
deposit with such Trustee an amount of
money sufficient to pay the redemption
price, plus interest accrued to such
redemption date, for all the Book-Entry
Notes or portions thereof which are to be
repaid on such redemption date. Such
Trustee will use such money to repay such
Book-Entry Notes pursuant to the terms set
forth in such Notes.
Procedure for Rate The Company and the Agents will discuss
Setting and from time to time the aggregate principal
Posting: amount of, the issuance price of, and the
interest rates to be borne by, Book-Entry
Notes that may be sold as a result of the
solicitation of orders by the Agents. If
the Company decides to set prices of, and
rates borne by, any Book-Entry Notes in
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respect of which the Agents are to solicit
orders (the setting of such prices and
rates to be referred to herein as
"posting") or if the Company decides to
change prices or rates previously posted
by it, it will promptly advise the Agents
of the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the
Rejection of Company, each Agent will advise the
Orders: Company promptly by telephone of all
orders to purchase Book-Entry Notes
received by such Agent, other than those
rejected by it in whole or in part in the
reasonable exercise of its discretion.
Unless otherwise agreed by the Company
and the Agents, the Company has the right
to accept orders to purchase Book-Entry
Notes and may reject any such orders in
whole or in part.
Preparation of If any order to purchase a Book-Entry
Pricing Note is accepted by or on behalf of
Supplement: the Company, the Company will prepare a
pricing supplement (a "Pricing
Supplement") reflecting the applicable
interest rates and other terms of such
Book-Entry Note and will arrange
to have copies thereof filed with the
Commission in accordance with the
applicable paragraph of Rule 424(b) under
the Act and will supply one copy thereof
(and additional copies if requested) to
the Agent which presented the order (the
"Presenting Agent"). The Presenting Agent
will cause a Prospectus and Pricing
Supplement to be delivered to the
purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement
is prepared, the Presenting Agent will
affix the Pricing Supplement to
Prospectuses prior to their use.
Outdated Pricing Supplements (other than
those retained for files) will be
destroyed.
Suspension of The Company reserves the right, in its
Solicitation; sole discretion, to instruct the
Amendment or Agents to suspend at any time, for any
Supplement: period of time or permanently, the
solicitation of orders to purchase
Book-Entry Notes. Upon receipt of such
instructions, the Agents will forthwith
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suspend solicitation until such time as
the Company has advised them that such
solicitation may be resumed.
In the event that at the time the Company
suspends solicitation of purchases there
shall be any orders outstanding for
settlement, the Company will promptly
advise the Agents, the Trustee and
Chemical whether such orders may be
settled and whether copies of the
Prospectus as in effect at the time of the
suspension, together with the appropriate
Pricing Supplement, may be delivered in
connection with the settlement of such
orders. The Company will have the sole
responsibility for such decision and for
any arrangements that may be made in the
event that the Company determines that
such orders may not be settled or that
copies of such Prospectus may not be so
delivered.
If the Company decides to amend or
supplement the Registration Statement (as
defined in the Agency Agreement) or the
Prospectus, it will promptly advise the
Agents and furnish the Agents with the
proposed amendment or supplement and with
such certificates and opinions as are
required, all to the extent required by
and in accordance with the terms of the
Agency Agreement. Subject to the
provisions of the Agency Agreement, the
Company may file with the Commission any
such supplement to the Prospectus relating
to the Notes. The Company will provide
the Agents, the Trustee and Chemical with
copies of any such supplement, and confirm
to the Agents that such supplement has
been filed with the Commission pursuant to
the applicable paragraph of Rule 424(b).
Procedures For When the Company has determined to
Rate Changes: change the interest rates of Book-Entry
Notes being offered, it will promptly
advise the Agents and the Agents will
forthwith suspend solicitation of orders.
The Agents will telephone the Company
with recommendations as to the changed
interest rates. At such time as the
Company has advised the Agents of the
new interest
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rates, the Agents may resume solicitation
of orders. Until such time only
"indications of interest" may be recorded.
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Book-Entry Note
must accompany or precede the earliest of
any written offer of such Book-Entry Note,
confirmation of the purchase of such
Book-Entry Note and payment for such
Book-Entry Note by its purchaser. If
notice of a change in the terms of the
Book-Entry Notes is received by the Agents
between the time an order for a Book-Entry
Note is placed and the time written
confirmation thereof is sent by the
Presenting Agent to a customer or his
agent, such confirmation shall be
accompanied by a Prospectus and Pricing
Supplement setting forth the terms in
effect when the order was placed. Subject
to "Suspension of Solicitation; Amendment
or Supplement" above, the Presenting Agent
will deliver a Prospectus and Pricing
Supplement as herein described with
respect to each Book-Entry Note sold by
it. The Company will make such delivery
if such Book-Entry Note is sold directly
by the Company to a purchaser (other than
an Agent).
Confirmation: For each order to purchase a Book-Entry
Note solicited by any Agent and accepted
by or on behalf of the Company, the
Presenting Agent will issue a confirmation
to the purchaser, with a copy to the
Company, setting forth the details set
forth above and delivery and payment
instructions.
Settlement: The receipt by the Company of immediately
available funds in payment for a
Book-Entry Note and the authentication
and issuance of the Global Security
representing such Book-Entry Note shall
constitute "settlement" with respect to
such Book-Entry Note. All orders accepted
by the Company will be settled on the fifth
Business Day following the date of sale of
such Book-Entry Note pursuant to the
timetable for settlement set forth below
unless the Company and the purchaser agree
to settlement on another
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<PAGE> 45
day which shall be no earlier than the
next Business Day following the date of
sale.
Settlement Settlement Procedures with regard to
Procedures: each Book-Entry Note sold by the
Company through any Agent, as agent, shall
be as follows:
A. The Presenting Agent will advise
the Company by telephone of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate
Book-Entry Note, the interest
rate or, in the case of a
Floating Rate Book-Entry
Note, the Base Rate,
initial interest rate (if
known at such time), Index
Maturity, Interest Reset
Period, Interest Reset Dates,
Spread or Spread Multiplier
(if any), Minimum Interest
Rate (if any) and Maximum
Interest Rate (if any).
4. Interest Payment Dates and the
Interest Payment Period.
5. Redemption, repayment and
extension provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission,
determined as provided in
Section 2 of the Agency
Agreement.
9. Whether such Book-Entry Note
is issued at an original issue
discount and, if so, the
total amount of OID, the
yield to maturity and the
initial accrual period OID.
B. The Company will assign a CUSIP
number to the Global Security
representing
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<PAGE> 46
such Book-Entry Note and then
advise Chemical by telephone
(confirmed in writing at any
time on the same date) or electronic
transmission of the information set
forth in Settlement Procedure "A"
above, such CUSIP number and the
name of the Presenting Agent. The
Company will also notify the
Presenting Agent by telephone of
such CUSIP number as soon as
practicable. Each such
communication by the Company shall
constitute a representation and
warranty by the Company to Chemical,
the Trustee and the Presenting Agent
that (i) such Note is then, and at
the time of issuance and sale
thereof will be, duly authorized for
issuance and sale by the Company,
(ii) such Note, and the Global
Security representing such Note,
will conform with the terms of the
Indenture for such Note, and (iii)
upon authentication and delivery of
such Global Security, the aggregate
initial offering price of all Notes
issued under the Indenture will not
exceed $350,000,000 (except for
Book-Entry Notes represented by
Global Securities authenticated and
delivered in exchange for or in lieu
of Global Securities pursuant to the
Indenture and except for
Certificated Notes authenticated and
delivered upon registration of
transfer of, in exchange for, or in
lieu of Certificated Notes pursuant
to any such Section).
C. Chemical will enter a pending
deposit message through DTC's
Participant Terminal System
providing the following settlement
information to DTC (which shall
route such information to Standard
& Poor's Corporation), the
Presenting Agent and, upon request,
the Trustee:
1. The information set forth in
Settlement Procedure "A".
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<PAGE> 47
2. Identification as a Fixed
Rate Book-Entry Note or a
Floating Rate Book-Entry
Note.
3. Initial Interest Payment Date
for such Book-Entry Note,
number of days by which such
date succeeds the related
Regular Record Date and
amount of interest payable on
such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global
Security representing such
Book-Entry Note.
6. Whether such Global Security
will represent any other
Book-Entry Note (to the
extent known at such time).
D. To the extent the Company has not
already done so, the Company will
deliver to Chemical a Global
Security in a form that has been
approved by the Company, the Agents
and the Trustee.
E. Chemical will complete such
Book-Entry Note, stamp the
appropriate legend, as instructed
by DTC, if not already set forth
thereon, and authenticate the
Global Security representing such
Book-Entry Note.
F. DTC will credit such Book-Entry
Note to Chemical's participant
account at DTC.
G. Chemical will enter an SDFS deliver
order through DTC's Participant
Terminal System instructing DTC to
(i) debit such Book-Entry Note to
Chemical's participant account and
credit such Book-Entry Note to the
Presenting Agent's participant
account and (ii) debit the
Presenting Agent's settlement
account and credit Chemical's
settlement account for an amount
equal to the price of such Book-
Entry Note less the Presenting
Agent's commission. The entry of
such a deliver order shall
constitute a representation and
warranty by Chemical
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<PAGE> 48
to DTC that (i) the Global Security
representing such Book-Entry Note
has been issued and authenticated
and (ii) Chemical is holding such
Global Security pursuant to the
Medium-Term Note Certificate
Agreement between Chemical and DTC.
H. The Presenting Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Book-Entry Note to the Presenting
Agent's participant account and
credit such Book-Entry Note to the
participant accounts of the
Participants with respect to such
Book-Entry Note and (ii) to debit
the settlement accounts of such
Participants and credit the
settlement account of the
Presenting Agent for an amount
equal to the price of such
Book-Entry Note.
I. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures "G" and
"H" will be settled in accordance
with SDFS operating procedures in
effect on the settlement date.
J. Chemical will, upon receipt of
funds from the Presenting Agent in
accordance with Settlement
Procedure "G", credit to an account
of the Company maintained at
Chemical funds available for
immediate use in the amount
transferred to Chemical in
accordance with Settlement
Procedure "G".
K. The Presenting Agent will confirm
the purchase of such Book-Entry
Note to the purchaser either by
transmitting to the Participants
with respect to such Book-Entry
Note a confirmation order or orders
through DTC's institutional
delivery system or by mailing a
written confirmation to such
purchaser.
Settlement For orders of Book-Entry Notes
Procedures solicited by any Agent and accepted by
Timetable: the Company for settlement on the first
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<PAGE> 49
Business Day after the sale date,
Settlement Procedures "A" through "K" set
forth above shall be completed as soon as
possible but not later than the respective
times (New York City time) set forth
below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A 11:00 A.M. on the sale
date
B 12:00 Noon on the sale
date
C 2:00 P.M. on the sale
date
D 3.00 P.M. on the Business
Day before
settlement
E 9:00 A.M. on settlement
date
F 10:00 A.M. on settlement
date
G-H 2:00 P.M. on settlement
date
I 4:45 P.M. on settlement
date
J-K 5:00 P.M. on settlement
date
</TABLE>
If a sale is to be settled more than one
Business Day after the sale date,
Settlement Procedures "A", "B" and "C"
shall be completed as soon as practicable
but no later than 11:00 A.M. and 12:00
Noon on the first Business Day after the
sale date and no later than 2:00 P.M. on
the Business Day before the settlement
date, respectively. If the initial
interest rate for a Floating Rate
Book-Entry Note has not been determined at
the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and
"C" shall be completed as soon as such
rate has been determined but no later than
12:00 Noon and 2:00 P.M., respectively, on
the Business Day before the settlement
date. Settlement Procedure "I" is subject
to extension in accordance with any
extension of Fedwire closing deadlines and
in the other events specified in SDFS
operating procedures in effect on the
settlement date.
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<PAGE> 50
If settlement of a Book-Entry Note is
rescheduled or cancelled, Chemical will
deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to
such effect by no later than 2:00 P.M. on
the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle: If Chemical fails to enter an SDFS deliver
order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G",
Chemical may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable, a withdrawal message
instructing DTC to debit such Book-Entry
Note to Chemical's participant account.
DTC will process the withdrawal message,
provided that Chemical's participant
account contains a principal amount of the
Global Security representing such
Book-Entry Note that is at least equal to
the principal amount to be debited. If a
withdrawal message is processed with
respect to all the Book-Entry Notes
represented by a Global Security, the
Trustee will cancel such Global Security in
accordance with the Indenture and so advise
the Company and Chemical, and Chemical will
make appropriate entries in its records.
The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled and
not immediately reassigned. If a
withdrawal message is processed with
respect to one or more, but not all, of the
Book-Entry Notes represented by a Global
Security, Chemical will exchange such
Book-Entry Note for two Global Securities,
one of which shall represent such
Book-Entry Notes and shall be cancelled
immediately after issuance and the other of
which shall represent the other Book-Entry
Notes previously represented by the
surrendered Global Security and shall bear
the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry
Note is not timely paid to the
Participants with respect to such Note by
the beneficial purchaser thereof (or a
Person, including an indirect participant
in DTC, acting on
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<PAGE> 51
behalf of such purchaser), such
Participants and, in turn, the Presenting
Agent may enter SDFS deliver orders
through DTC's Participant Terminal System
reversing the orders entered pursuant to
Settlement Procedures "H" and "G",
respectively. Thereafter, Chemical will
deliver the withdrawal message and take
the related actions described in the
preceding paragraph. If such failure
shall have occurred for any reason other
than a default by the Presenting Agent in
the performance of its obligations
hereunder and under the Agency Agreement,
then the Company will reimburse the
Presenting Agent or Chemical, as
applicable, on an equitable basis for the
loss of the use of the funds during the
period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating
procedures then in effect. In the event
of a failure to settle with respect to one
or more, but not all, of the Book-Entry
Notes to have been represented by a Global
Security, Chemical will provide, in
accordance with Settlement Procedure "E",
for the authentication and issuance of a
Global Security representing the other
Book-Entry Notes to have been represented
by such Global Security and will make
appropriate entries in its records.
Trustee and Chemical Nothing herein shall be deemed to
Not to Risk Funds: require the Trustee or Chemical to risk or
expend its own funds in connection with
any payment to the Company, DTC, the Agents
or the purchaser, it being understood by
all parties that payments made by the
Trustee or Chemical to the Company, DTC,
the Agents or the purchaser shall be made
only to the extent that funds are provided
to the Trustee or Chemical for such
purpose.
Authenticity of The Company will cause the Trustee to
Signatures: furnish Chemical and the Agents from time
to time with the specimen signatures of
each of the Trustee's officers, employees
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<PAGE> 52
or agents who has been authorized by the
Trustee to authenticate Book-Entry Notes,
but neither Chemical nor any Agent will
have any obligation or liability to the
Company or the Trustee in respect of the
authenticity of the signature of any
officer, employee or agent of the Company
or the Trustee on any Book- Entry Note.
Periodic Statements Periodically, Chemical will send to the
from Chemical: Company a statement setting forth the
principal amount of Book-Entry Notes
Outstanding as of that date and setting
forth a brief description of any sales of
Book-Entry Notes which the Company has
advised Chemical but which have not yet
been settled.
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<PAGE> 53
PART II
Administrative Procedures for Certificated Notes
Chemical will serve as registrar and transfer agent in connection with
the Certificated Notes.
Issuance: Each Certificated Note will be dated and
issued as of the date of its
authentication by the Trustee. Each
Certificated Note will bear an Original
Issue Date, which will be (i) with respect
to an original Certificated Note (or any
portion thereof), its original issuance
date (which will be the settlement date)
and (ii) with respect to any Certificated
Note (or portion thereof) issued
subsequently upon transfer or exchange of
a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated
Note, the Original Issue Date of the
predecessor Certificated Note, regardless
of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in
fully registered form without coupons.
Transfers and A Certificated Note may be presented
for Exchanges: for transfer or exchange at the principal
corporate trust office in the City of New
York of Chemical. Certificated Notes will
be exchangeable for other Certificated
Notes having identical terms but different
authorized denominations without service
charge. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a
date not less than nine months after the
settlement date for such Note. A Floating
Rate Certificated Note will mature only on
an Interest Payment Date for such
Note. Any Note denominated in Japanese yen
will mature on a date not less than one
year from the Original Issue Date (as
defined below) for such Note. Any Note
denominated in Pounds Sterling will mature
on a date not less than one year, nor more
than five years, after its Original Issue
Date.
Denominations: The denomination of any Certificated Note
denominated in U.S. dollars will be a
minimum of $1,000 or any amount in excess
thereof that is an integral multiple of
$1,000. The authorized denominations of
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<PAGE> 54
Certificated Notes denominated in any
other currency will be specified pursuant
to "Settlement Procedures" below.
Interest: General. Interest, if any, on each
Certificated Note will accrue from the
original issue date for the first interest
period or the last date to
which interest has been paid, if any, for
each subsequent interest period, and will
be calculated and paid in the manner
described in such Note and in the
Prospectus, as supplemented by the
applicable Pricing Supplement. Unless
otherwise specified therein, each payment
of interest on a Certificated Note will
include interest accrued to but excluding
the Interest Payment Date (provided that,
in the case of Certificated Notes which
reset daily or weekly, interest payments
will include accrued interest to but
excluding the Regular Record Date
immediately preceding the Interest Payment
Date) or to but excluding Maturity (other
than a Maturity of a Fixed Rate
Certificated Note occurring on the 31st
day of a month, in which case such payment
of interest will include interest accrued
to but excluding the 30th day of such
month).
Regular Record Dates. The Regular Record
Dates with respect to any Interest Payment
Date shall be the date fifteen calendar
days immediately preceding such Interest
Payment Date (whether or not a Business
Day).
Fixed Rate Certificated Notes. Unless
otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on
Fixed Rate Certificated Notes will be made
semi-annually on June 1 and December 1 of
each year and at Maturity; provided,
however, that if any Interest Payment Date
for a Fixed Rate Certificated Note is not
a Business Day, the payment due on such
day shall be made on the next succeeding
Business Day and no interest shall accrue
on such payment for the period from and
after such Interest Payment Date; provided
further, that in the case of a Fixed Rate
Certificated Note issued between a Regular
Record Date and an Interest Payment Date,
the first interest payment will be made on
the Interest Payment Date following the
next succeeding Regular Record Date.
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<PAGE> 55
Floating Rate Certificated Notes.
Interest payments will be made on Floating
Rate Certificated Notes monthly,
quarterly, semi-annually or annually.
Interest will be payable, in the case of
Floating Rate Certificated Notes with a
monthly Interest Payment Period, on the
third Wednesday of each month; with a
quarterly interest Payment Period, on the
third Wednesday of March, June, September
and December of each year; with a
semi-annual Interest Payment Period, on
the third Wednesday of the two months
specified pursuant to Settlement Procedure
"A" below; and with an annual Interest
Payment Period, on the third Wednesday of
the month specified pursuant to Settlement
Procedure "A" below; provided, however,
that if an Interest Payment Date for a
Floating Rate Certificated Note would
otherwise be a day that is not a Business
Day with respect to such Floating Rate
Certificated Note, such Interest Payment
Date will be the next succeeding Business
Day with respect to such Floating Rate
Certificated Note, except in the case of a
Floating Rate Certificated Note for which
the Base Rate is LIBOR, if such Business
Day is in the next succeeding calendar
month, such Interest Payment Date will be
the immediately preceding Business Day;
and provided further, that in the case of
a Floating Rate Certificated Note issued
between a Regular Record Date and an
interest Payment Date, the first interest
payment will be made on the Interest
Payment Date following the next succeeding
Regular Record Date.
Calculation of Fixed Rate Certificated Note. Interest
Interest: on Fixed Rate Certificated Notes
(including interest for partial periods)
will be calculated on the basis of a
360-day year of twelve 30-day months.
Floating Rate Certificated Notes.
Interest rates on Floating Rate
Certificated Notes will be determined as
set forth in the form of Notes. Interest
on Floating Rate Certificated Notes,
except as otherwise set forth therein,
will be calculated on the basis of actual
days elapsed and a year of 360 days,
except that in the case of a Floating Rate
Certificated Note for which the Base Rate
is Treasury Rate, interest
-55-
<PAGE> 56
will be calculated on the basis of the
actual number of days in the year.
Payments of Interest, if any, on each Certificated
Principal and Note will be calculated and paid in
Interest: the manner described in such Note and in
the Prospectus, as supplemented by the
applicable Pricing Supplement. Unless
otherwise provided in the Indenture or
the Certificated Note, the first payment of
interest on any Certificated Note
originally issued between a Record Date and
an Interest Payment Date will be made on
the next succeeding Interest Payment Date.
Interest payable at the Maturity of a
Certificated Note will be payable to the
Person to whom the principal of such Note
is payable. Unless other arrangements are
made, all interest payments (excluding
interest payments made on the Maturity
Date) will be made by check mailed to the
person entitled thereto as provided above;
provided, however, that the holder of
$10,000,000 (or the equivalent thereof in
other currencies) or more of Certificated
Notes with similar tenor and terms will be
entitled to receive payment by wire
transfer or automated clearing house in
U.S. dollars.
Within 10 days following each Record Date,
the Trustee will inform the Company of the
total amount of the interest payments to
be made by the Company on the next
succeeding Interest Payment Date. The
Trustee will provide monthly to the
Company a list of the principal and
interest to be paid on Certificated Notes
maturing in the next succeeding month.
Chemical will be responsible for
withholding taxes on interest paid on
Certificated Notes as required by
applicable law.
If the Maturity of a Certificated Note is
not a Business Day, the payment due on
such day shall be made on the next
succeeding Business Day and no interest
shall accrue on such payment for the
period from and after such Maturity.
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<PAGE> 57
Procedures upon Company Notice to Trustee Regarding
Company's Exercise of Optional Redemption. At
Exercise of least 45 days prior to the date on which
Optional it intends to redeem a Certificated Note,
Redemption: the Company will notify the Trustee that
it is exercising such option with respect
to such Certificated Note on such date.
Trustee Notice to Holders Regarding
Company's Exercise of Optional Redemption.
After receipt of notice that the Company
is exercising its option to redeem a
Certificated Note, the Trustee will, at
least 30 days before the redemption date
for such Certificated Note, mail a notice,
first class, postage prepaid, to the
Holder of such Certificated Note informing
such Holder of the Company's exercise of
such option with respect to such
Certificated Note.
Deposit of Redemption Price. On or before
any redemption date, the Company shall
deposit with such Trustee an amount of
money sufficient to pay the redemption
price, plus interest accrued to such
redemption date, for all the Certificated
Notes or portions thereof and which are to
be repaid on such redemption date. Such
Trustee will use such money to repay such
Certificated Notes pursuant to the terms
set forth in such Notes.
Procedure for Rate The Company and the Agents will discuss
Setting and from time to time the aggregate principal
Posting: amount of, the issuance price of, and the
interest rates to be borne by, Notes that
may be sold as a result of the solicitation
of orders by the Agents. If the Company
decides to set prices of, and rates
borne by, any Notes in respect of which the
Agents are to solicit orders (the setting
of such prices and rates to be referred to
herein as "posting") or if the Company
decides to change prices or rates
previously posted by it, it will promptly
advise the Agents of the prices and rates
to be posted.
Acceptance and Unless otherwise instructed by the
Rejection of Orders: Company, each Agent will advise the
Company promptly by telephone of all
orders to purchase Certificated
Notes received by such Agent, other than
those rejected by it in whole or in part
in the reasonable
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<PAGE> 58
exercise of its discretion. Unless
otherwise agreed by the Company and the
Agents, the Company has the sole right to
accept orders to purchase Certificated
Notes and may reject any such orders in
whole or in part. Before accepting any
order to purchase a Certificated Note to
be settled in less than three Business
Days, the Company shall verify that the
Trustee will have adequate time to prepare
and authenticate such Note.
Preparation of If any order to purchase a Certificated
Pricing Note is accepted by or on behalf of the
Supplement: Company, the Company will prepare a
pricing supplement (a "Pricing
Supplement") reflecting the interest
rates and other terms of such Certified
Note and will arrange to have copies
thereof filed with the Commission in
accordance with the applicable paragraph
of Rule 424(b) under the Act and will
supply one copy thereof (and additional
copies if requested) to the Agent which
presented the order (the "Presenting
Agent"). The Presenting Agent will cause
a Prospectus and Pricing Supplement to be
delivered to the purchaser of such
Certificated Note.
In each instance that a Pricing Supplement
is prepared, the Presenting Agent will
affix the Pricing Supplement to
Prospectuses prior to their use. Outdated
Pricing Supplements (other than those
retained for files) will be destroyed.
Suspension of The Company reserves the right, in
Solicitation; its sole discretion, to instruct the
Amendment or Agents to suspend at any time for any
Supplement: period of time or permanently, the
solicitation of orders to purchase
Certificated Notes. Upon receipt of
such instructions, the Agents will
forthwith suspend solicitation until such
time as the Company has advised them that
such solicitation may be resumed.
In the event that at the time the Company
suspends solicitation of purchases there
shall be any orders outstanding for
settlement, the Company will promptly
advise the Agents, the Trustee and
Chemical whether such orders may be
settled and whether copies of the
Prospectus as in effect at the time of the
suspension,
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<PAGE> 59
together with the appropriate Pricing
Supplement, may be delivered in connection
with the settlement of such orders. The
Company will have the sole responsibility
for such decision and for any arrangements
that may be made in the event that the
Company determines that such orders may
not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or
supplement the Registration Statement or
the Prospectus, it will promptly advise
the Agents and furnish the Agents with the
proposed amendment or supplement and with
such certificates and opinions as are
required, all to the extent required by
and in accordance with the terms of the
Agency Agreement. Subject to the
provisions of the Agency Agreement, the
Company may file with the Commission any
supplement to the Prospectus relating to
the Notes. The Company will provide the
Agents, the Trustee and Chemical with
copies of any such supplement, and confirm
to the Agents that such supplement has
been filed with the Commission pursuant to
the applicable paragraph of Rule 424(b).
Procedure for When the Company has determined to
Rate Changes: change the interest rates of Certificated
Notes being offered, it will promptly
advise the Agents and the Agents will
forthwith suspend solicitation of orders.
The Agents will telephone the Company
with recommendations as to the changed
interest rates. At such time as the
Company has advised the Agents of the new
interest rates, the Agents may resume
solicitation of orders. Until such time
only "indications of interest" may be
recorded.
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Certificated Note
must accompany or precede the earliest of
any written offer of such Certificated
Note, confirmation of the purchase of such
Certificated Note and payment for such
Certificated Note by its purchaser. If
notice of a change in the terms of the
Certificated Notes is received by the
Agents between the time an order for a
Certificated Note is placed and the time
written confirmation thereof is sent by the
Presenting Agent to a customer or his
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<PAGE> 60
agent, such confirmation shall be
accompanied by a Prospectus and Pricing
Supplement setting forth the terms in
effect when the order was placed. Subject
to "Suspension of Solicitation; Amendment
or Supplement" above, the Presenting Agent
will deliver a Prospectus and Pricing
Supplement as herein described with
respect to each Certificated Note sold by
it. The Company will make such delivery
if such Certificated Note is sold directly
by the Company to a purchaser (other than
any Agent).
Confirmation: For each order to purchase a Certificated
Note solicited by any Agent and accepted
by or on behalf of the Company, the
Presenting Agent will issue a confirmation
to the purchaser, with a copy to the
Company, setting forth the details
set forth above and delivery and payment
instructions.
Settlement: The receipt by the Company of immediately
available funds in exchange for an
authenticated Certificated Note delivered
to the Presenting Agent and the
Presenting Agent's delivery of such
Certificated Note against receipt of
immediately available funds shall, with
respect to such Certificated Note,
constitute "settlement". All orders
accepted by the Company will be settled on
the fifth Business Day following the date
of sale pursuant to the timetable for
settlement set forth below, unless the
Company and the purchaser agree to
settlement on another day which shall be no
earlier than the next Business Day
following the date of sale.
Settlement Settlement Procedures with regard to
Procedures: each Certificated Note sold by the Company
through any Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise
the Company by telephone of the
following settlement information,
in time for the Trustee to prepare
and authenticate the required Note:
1. Name in which such
Certificated Note is to be
registered ("Registered
Owner").
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<PAGE> 61
2. Address of the Registered
Owner and address for
payment of principal and
interest.
3. Taxpayer identification
number of the Registered
Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate
Certificated Note, the
interest rate or, in the case
of a Floating Rate
Certificated Note, the
initial interest rate (if
known at such time), Base
Rate, Index Maturity,
Interest Reset Period,
Interest Reset Dates, Spread
or Spread Multiplier (if
any), Minimum Interest Rate
(if any) and Maximum Interest
Rate (if any).
7. Interest Payment Dates and
the Interest Payment Period.
8. Specified Currency and
whether the option to elect
payment in a Specified
Currency applies and if the
Specified Currency is not
U.S. dollars, the authorized
denominations.
9. Redemption, repayment or
extension provisions, if any.
10. Settlement date.
11. Price (including currency).
12. Presenting Agent's
commission, determined as
provided in Section 2 of
the Agency Agreement.
13. Whether such Certificated
Note is issued at an original
issue discount, and, if so,
the total amount of OID, the
yield to maturity and the
initial accrual period OID.
B. The Company will advise Chemical by
telephone (confirmed in writing at
any time on the sale date) or
electronic
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<PAGE> 62
transmission of the information
set forth in Settlement Procedure
"A" above and the name of the
Presenting Agent.
C. The Company will deliver to
Chemical a pre-printed five-ply
packet for such Certificated Note,
which packet will contain the
following documents in forms that
have been approved by Company, the
Agents and the Trustee:
1. Certificated Note with
customer confirmation.
2. Stub One - For Trustee.
3. Stub Two - For the Presenting
Agent.
4. Stub Three - For the Company.
5. Stub Four - For the
Authenticating Agent.
D. Chemical will complete such
Certificated Note and will
authenticate such Certificated Note
and deliver it (with the
confirmation) and Stubs One and Two
to the Presenting Agent, all in
accordance with the written
directions (or oral instructions
confirmed in writing on the next
Business Day) of the Company, and
the Presenting Agent will
acknowledge receipt of the Note by
stamping or otherwise marking Stub
One and returning it to the
Trustee. Such delivery will be
made only against such
acknowledgment of receipt. In the
event that the instructions given
by the Presenting Agent for payment
to the account of the Company are
revoked, the Company will as
promptly as possible wire transfer
to the account of the Presenting
Agent an amount of immediately
available funds equal to the amount
of such payment made.
E. The Presenting Agent will deliver
such Certificated Note (with the
confirmation) to the customer
against payment in immediately
payable funds. The Presenting
Agent will obtain the
acknowledgement of receipt of such
Certificated Note by retaining Stub
Two.
-62-
<PAGE> 63
F. Chemical will send Stub Three to
the Company by first-class mail and
retain Stub Four for its records.
Settlement For orders of Certificated Notes
Procedures solicited by any Agent, as agent, and
Timetable: accepted by the Company, Settlement
Procedures "A" through "F" set forth above
shall be completed on or before the
respective times (New York City time) set
forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A 2:00 P.M. on the day
before
settlement
B-C 3:00 P.M. on the Business
Day before
settlement
D 2:15 P.M. on settlement
date
E 3:00 P.M. on settlement
date
F 5:00 P.M. on settlement
date
</TABLE>
Failure to If a purchaser fails to accept
Settle: delivery of and make payment for any
Certificated Note, the Presenting Agent
will notify the Company and Chemical by
telephone and return such Certificated
Note to the Trustee. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Presenting
Agent an amount equal to the amount
previously credited to the account of
Company in respect of such Certificated
Note. Such wire transfer will be made on
the settlement date, if possible, and in
any event not later than the Business Day
following the settlement date. If the
failure shall have occurred for any reason
other than a default by the Presenting
Agent in the performance of its obligations
hereunder and under the Agency Agreement,
then the Company will reimburse the
Presenting Agent or Chemical, as
appropriate, on an equitable basis for its
loss of the use of the funds during the
period when they were credited to the
account of the Company. Immediately upon
receipt of the Certificated Note in respect
of which such failure occurred, the Trustee
-63-
<PAGE> 64
will cancel such Certificated Note in
accordance with the Indenture and so
advise the Company and Chemical, and
Chemical will make appropriate entries in
its records.
Trustee and Chemical Nothing herein shall be deemed to
Not to Risk Funds: require the Trustee or Chemical to risk or
expend its own funds in connection with
any payment to the Company, the Agents or
the purchaser, it being understood by all
parties that payments made by the Trustee
or Chemical to the Company, the Agents or
the purchaser shall be made only to the
extent that funds are provided to the
Trustee or Chemical for such purpose.
Authenticity of The Company will cause the Trustee to
Signatures: furnish Chemical and the Agents from time
to time with the specimen signatures of
each of the Trustee's officers, employees
or agents who has been authorized by the
Trustee to authenticate Certificated
Notes, but neither Chemical nor any Agent
will have any obligation or liability to
the Company or the Trustee in respect of
the authenticity of the signature of any
officer, employee or agent of the Company
or the Trustee on any Certificated Note.
Periodic Statements Periodically, Chemical will send to
from Chemical: the Company a statement setting forth the
principal amount of Certificated Notes
Outstanding as of that date and setting
forth a brief description of any sales of
Certificated Notes which the Company has
advised Chemical but which have not yet
been settled.
-64-
<PAGE> 65
EXHIBIT B
JOHNSON CONTROLS, INC.
Medium Term Notes, Series C
Due Nine Months
or More from Date of Issue
TERMS AGREEMENT
, 199
Attention:
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated , 1995, between Salomon
Brothers Inc, J.P. Morgan Securities Inc., Lehman Brothers, Lehman Brothers
Inc. and BA Securities, Inc., and you, the undersigned agrees to purchase the
following Notes of Johnson Controls, Inc.
[Add additional terms as may be needed to identify Notes.]
[Specified Currency]:
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus
accrued interest from, 199 ]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
-65-
<PAGE> 66
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(m) of the Agreement:
[Purchaser]
By:
--------------------------
Accepted:
Johnson Controls, Inc.
By:
--------------------------
Title:
-66-
<PAGE> 1
EXHIBIT 1.2
UNDERWRITING AGREEMENT
New York, New York
To the Representatives
named in Schedule I hereto
of the Underwriters named in
Schedule II hereto
Dear Sirs:
Johnson Controls, Inc., a Wisconsin corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of its securities identified in Schedule
I hereto (the "Securities"), to be issued under an indenture dated as of
February 22, 1995, between the Company and Chemical Bank Delaware, as trustee
(the "Trustee") (the "Indenture"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives", as used herein, shall each be
deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if the
offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so amended,
has become effective. The offering of the Securities is a Delayed
Offering and, although the Basic
<PAGE> 2
Prospectus may not include all the information with respect to the
Securities and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic
Prospectus includes all such information required by the Act and the
rules thereunder to be included therein as of the Effective Date. The
Company will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of prospectus included
in such registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Securities and
the offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein.
(ii) The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission
either (x) a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to the
effectiveness of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (x), the Company has included in
such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in the Final Prospectus with
respect to the Securities and the offering thereof. As filed, such
final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the
-2-
<PAGE> 3
Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the applicable
requirements of the Act, the Securities Exchange Act of 1934 (the "Exchange
Act") and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder; on the Effective Date, the Registration Statement
did not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act and the rules thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule 424(b), and on
the Closing Date, the Final Prospectus (together with any supplement thereto)
will not, include any 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; provided,
however, that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective. "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a) above
contained in the Registration Statement at the Effective Date including, in the
case of a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus
-3-
<PAGE> 4
supplement relating to the Securities that is first filed pursuant to Rule
424(b) after the Execution Time, together with the Basic Prospectus or, if, in
the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the Registration Statement at the
Effective Date. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also mean
such registration statement as so amended. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation
S-K" refer to such rules or regulation under the Act. "Rule 430A Information"
means information with respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities which
is intended to commence promptly after the effective date of a registration
statement, with the result that, pursuant to Rules 415 and 430A, all
information (other than Rule 430A Information) with respect to the securities
so offered must be included in such registration statement at the effective
date thereof. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the effective date
of a registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at the
effective date thereof with respect to the securities so offered. Whether the
offering of the Securities is a Non-Delayed Offering or a Delayed Offering
shall be set forth in Schedule I hereto.
-4-
<PAGE> 5
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if Schedule I
hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in Schedule II hereto less the
respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in Schedule II hereto, except
to the extent that you determine that such reduction shall be otherwise than in
such proportion and so advise the Company in writing; provided, however, that
the total principal amount of Securities to be purchased by all Underwriters
shall be the aggregate principal
-5-
<PAGE> 6
amount set forth in Schedule II hereto less the aggregate principal amount of
Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for
the Underwriters' Securities being herein called the "Closing Date"). Delivery
of the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank or by wire transfer and payable
in next day funds. Delivery of the Underwriters' Securities shall be made at
such location as the Representatives shall reasonably designate at least one
business day in advance of the Closing Date and payment for the Securities
shall be made at the office specified in Schedule I hereto. Certificates for
the Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will
-6-
<PAGE> 7
promptly advise the Representatives (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final Prospectus,
and any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 Under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably
-7-
<PAGE> 8
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities
(provided that the Company will not be required to qualify to do
business in any jurisdiction where it is not now qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now subject), will arrange
for the determination of the legality of the Securities for purchase
by institutional investors and will pay the fee of the National
Association of Securities Dealers, Inc., in connection with its review
of the offering.
(f) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Representatives may designate and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the
rating of the Securities, for printing and engraving fees, for fees
charged by the Trustee, for the filing fee of the National Association
of Securities Dealers, Inc. relating to the Securities and for
expenses incurred in distributing the Final Prospectus, any
Preliminary Final Prospectuses and any supplements thereto to the
Underwriters.
(g) Until the business date set forth on Schedule I
hereto, the Company will not, without the consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (other than the
Securities).
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
-8-
<PAGE> 9
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later than
(i) 6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 12:00 Noon on the business day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) the Company shall have furnished to the Representatives the
opinion of John P. Kennedy, Vice President, Secretary and General Counsel of
the Company, dated the Closing Date, to the effect that:
(i) each of the Company and each of the Company's
subsidiaries that is a "Significant Subsidiary" of the Company as that
term is defined in Regulation S-X of the Commission (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business and in which
the failure to so qualify would have a material adverse effect on the
Company;
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth
in the Final Prospectus, all outstanding shares of capital stock of
the Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and
-9-
<PAGE> 10
any other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is
as set forth in the Final Prospectus; the Securities conform to the
description thereof contained in the Final Prospectus; and, if the
Securities are to be listed on any securities exchange, authorization
therefor has been given, subject to official notice of issuance
evidence of satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting documents
with respect to the Securities with such securities exchange and such
counsel has no reason to believe that the Securities will not be
authorized for listing, subject to official notice of issuance and
evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust Indenture Act,
and constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect); and the Securities have been
duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect);
(v) there is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority or body
or any arbitrator involving the Company or any of its subsidiaries, of
a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus, or to
be filed as an exhibit, which is not described or filed as required;
and the statements included or
-10-
<PAGE> 11
incorporated in the Final Prospectus describing any legal proceedings
or material contracts or agreements relating to the Company fairly
summarize such matters;
(vi) the Registration statement has become effective
under the Act; any required filing of the Basic Prospectus; any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); no stop
order suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final Prospectus
(other than the financial statements and other financial and
statistical information contained therein as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; and such
counsel has no reason to believe that at the Effective Date the
Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Final Prospectus includes any untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(vii) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated herein or in any Delayed Delivery
Contracts, except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(ix) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach or violation of, or
-11-
<PAGE> 12
constitute a default under any law or the charter or by-laws of the
Company or the terms of any indenture or other agreement or instrument
to which the Company or any of its subsidiaries is a party or bound or
any judgement, order or decree known to such counsel to be applicable
to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of Wisconsin
or the United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Representatives shall have received from Mayer, Brown &
Platt, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date and the Company
has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
-12-
<PAGE> 13
for that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties of
the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) At the Closing Date, Price Waterhouse shall have furnished
to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by
them comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, directors and committees
of the board of directors of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date of
the most recent audited financial statements in or incorporated in the
Final Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included
or incorporated in the Registration statement and the Final
Prospectus do not comply
-13-
<PAGE> 14
in form in all material respects with applicable accounting
requirements and with the published rules and regulations
of the Commission with respect to financial statements
included or incorporated in quarterly reports on Form 10-Q
under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and
the Final Prospectus;
(2) with respect to the period subsequent to the
date of the most recent financial statements (other than
any "capsule" information), audited or unaudited, in or
incorporated in the Registration Statement and the Final
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the
letter, in the long- term debt of the Company and its
subsidiaries or capital stock of the Company or decreases
in the stockholders' equity of the Company or working
capital of the Company and its subsidiaries as compared
with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration
Statement and the Final Prospectus, or for the period from
the date of the most recent financial statements included
or incorporated in the Registration Statement and the Final
Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding
quarter in net revenues or income before income taxes or in
total or per share amounts of net income of the Company and
its subsidiaries, except in all instances for changes or
decreases which the Registration Statement disclosures have
occurred or may occur or they shall state any specific
changes or decreases and the amount thereof; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do not
agree with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on a
basis substantially consistent with that of the
corresponding amounts in the audited financial statements
included or incorporated in the
-14-
<PAGE> 15
Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the Final
Prospectus and in Exhibit 12 to the Registration Statement, including
the information included or incorporated in Items 1, 2, 6, 7 and 11 of
the Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated in the
Company's Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, Price Waterhouse shall have furnished to the Representatives a letter or
letters, dated as of the Execution Time, in form and substance satisfactory to
the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect of which
in any case referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt
-15-
<PAGE> 16
securities by any "nationally recognized statistical rating organization" (as
defined for purpose of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have been
approved by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a
-16-
<PAGE> 17
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriting" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
-17-
<PAGE> 18
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel) and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case
-18-
<PAGE> 19
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and of the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Underwriters. The
Company and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 7, each
person who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities
set forth opposite their names in Schedule II hereto bears to the aggregate
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase;
-19-
<PAGE> 20
provided, however, that in the event that the aggregate amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited
or minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Representatives, impracticable or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the
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<PAGE> 21
Representatives, will be mailed, delivered or telegraphed and confirmed to
them, at the address specified in Schedule I hereto; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at 5757
North Green Bay Avenue, Milwaukee, Wisconsin 53209, Attention: Secretary.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
JOHNSON CONTROLS, INC.
By: /s/ Ben C. M. Bastianen
--------------------------
Name: Ben C. M. Bastianen
Title: Treasurer
-21-
<PAGE> 22
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Salomon Brothers Inc
By: /s/ Anne Clarke-Wolff
-------------------------
Vice President
J.P. Morgan Securities Inc.
By: /s/ Raymond Schmitt
-------------------------
Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
-22-
<PAGE> 23
SCHEDULE I
Underwriting Agreement dated February 23, 1995.
Registration Statement No. 33-57685.
Representative(s): Salomon Brothers Inc
J.P. Morgan Securities Inc.
Title, Purchase Price and Description of Securities:
Title: 7.70% Debentures due March 1, 2015
Principal amount: $125,000,000
Purchase price (include accrued
interest or amortization, if
any): 99.794%
Sinking fund provisions: None
Redemption at the Option of the Holder: The Securities will not be
redeemable prior to maturity at the option of the Company. The
Securities are redeemable, in whole or in part, at the option of the
registered holders thereof, on March 1, 2005 (the "Redemption Date"),
at a price equal to their principal amount plus accrued and unpaid
interest thereon to the Redemption Date.
In order for a holder to exercise this option, the Company must
receive at the office of its paying agent in New York, New York,
during the period beginning on January 1, 2005 and ending at 5:00 PM
(New York City time) on January 31, 2005 (or, if January 31, 2005 is
not a Business Day, the next succeeding Business Day), the Security
with the form entitled "Option to Require Redemption on March 1, 2005"
on the reverse of the Security duly completed. Any such notice
received by the Company during the period beginning on January 1, 2005
and ending at 5:00 (New York City time) on January 31, 2005 shall be
irrevocable. The redemption option may be exercised by the holder of a
Security for less than the entire principal amount of the Security
held by such holder, so long as the principal amount that is to be
redeemed is equal to $1,000 or an integral multiple of $1,000.
Failure by the Company to repurchase the Securities when required as
described in the preceding paragraph will result in an Event of
Default under the Indenture.
<PAGE> 24
All questions regarding the validity, form, eligibility (including
time of receipt) and acceptance of any Security for redemption will be
determined by the Company, whose determination will be final and
binding.
The Company will comply with Rule 14e-1 under the Exchange Act and any
other securities laws and regulations to the extent such laws and
regulations are applicable to any Redemption at the Option of the
Holder.
Defeasance: The defeasance provisions of Section 13.02 of the Indenture
apply to the Securities.
Closing Date, Time and Location: March 2, 1995, 9:00 a.m. Chicago time at the
offices of Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois
60603.
Type of Offering: Delayed Offering.
Delayed Delivery Arrangements: None.
Date referred to in Section 4(g) after which the Company may
offer to sell debt securities issued or guaranteed by the
Company without the consent of the Representative(s): March 2, 1995
<PAGE> 25
<TABLE>
<CAPTION>
SCHEDULE II
PRINCIPAL AMOUNT
OF SECURITIES TO
UNDERWRITERS BE PURCHASED
- ------------ ----------------
<S> <C>
Salomon Brothers Inc . . . . . . . . . . . $ 57,500,000
J.P. Morgan Securities Inc. . . . . . . . . 57,500,000
Robert W. Baird & Co. Incorporated . . . . 5,000,000
B.A. Securities, Inc. . . . . . . . . . . . 5,000,000
------------
TOTAL . . . . . . . . . . . . . . . . . $125,000,000
============
</TABLE>
<PAGE> 26
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Johnson Controls, Inc.
(the "Company"), and the Company agrees to sell to the undersigned, on
_____________, 19___, (the "Delivery Date"), $_______ principal amount of the
Company's _________ (the "Securities") offered by the Company's Prospectus
dated ___________, 19___, and related Prospectus Supplement dated ___________,
19___, receipt of a copy of which is hereby acknowledged, at a purchase price
of ____% of the principal amount thereof, plus [accrued interest] [amortization
of original issue discount], if any, thereon from ______________, 19___, to the
date of payment and delivery, and on the further terms and conditions set forth
in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM, New York City time, on the Delivery Date to or upon
the order of the Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company no less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the
<PAGE> 27
Delivery Date, shall have sold to certain underwriters (the "Underwriters")
such principal amount of the Securities as is to be sold to them pursuant to
the Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
<PAGE> 28
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
__________________________________
(Name of Purchaser)
By _______________________________
(Signature and Title of Officer
__________________________________
(Address)
Accepted:
Johnson Controls, Inc.
By__________________________
(Authorized Signature)
<PAGE> 1
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EXHIBIT 4.1
JOHNSON CONTROLS, INC.
TO
CHEMICAL BANK DELAWARE,
TRUSTEE
___________
INDENTURE
Dated as of February 22, 1995
___________
DEBT SECURITIES
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TABLE OF CONTENTS*
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Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE.
Definitions.
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capitalized Rent . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . . . . . . 3
Consolidated Current Liabilities . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . 4
Consolidated Tangible Assets . . . . . . . . . . . . . . . . . 4
Conversion Date . . . . . . . . . . . . . . . . . . . . . . . . 4
Currency Determination Agent . . . . . . . . . . . . . . . . . 4
Current Market Price . . . . . . . . . . . . . . . . . . . . . 4
Debt Security or Debt Securities . . . . . . . . . . . . . . . 5
Debt Security Register . . . . . . . . . . . . . . . . . . . . 5
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dollar Equivalent of the Foreign Currency . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 5
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . 5
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Global Debt Security . . . . . . . . . . . . . . . . . . . . . 6
Government Obligations . . . . . . . . . . . . . . . . . . . . 6
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indexed Debt Security . . . . . . . . . . . . . . . . . . . . . 7
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . 7
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* This table of contents shall not, for any purpose, be deemed to be a part of
the Indenture.
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Market Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Debt Security . . . . . . . . . . . . . . . . . . . 8
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Predecessor Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . 9
Principal Office of the Trustee . . . . . . . . . . . . . . . . . . . . . . 9
Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Public Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Secured Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . 12
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Valuation Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO.
Debt Security Forms.
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.02. Forms of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.03. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . 14
SECTION 2.04. Debt Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE THREE.
The Debt Securities.
SECTION 3.01. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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SECTION 3.03. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.04. Execution of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.05. Temporary Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.06. Exchange and Registration of Transfer of Debt Securities . . . . . . . . . . . . . . 22
SECTION 3.07. Mutilated, Destroyed, Lost or Stolen Debt Securities . . . . . . . . . . . . . . . . 23
SECTION 3.08. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . 24
SECTION 3.09. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.10. Cancellation of Debt Securities Paid, etc . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.11. Currency and Manner of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE FOUR.
Redemption of Debt Securities; Sinking Funds.
SECTION 4.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.02. Notice of Redemption; Selection of Debt Securities . . . . . . . . . . . . . . . . . 28
SECTION 4.03. Payment of Debt Securities Called for Redemption . . . . . . . . . . . . . . . . . . 29
SECTION 4.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.05. Provisions with Respect to any Sinking Funds . . . . . . . . . . . . . . . . . . . . 30
ARTICLE FIVE.
Particular Covenants of the Company
SECTION 5.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.02. Offices for Notices and Payments, etc . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office . . . . . . . . . . . . . . . . . 33
SECTION 5.04. Provisions as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.05. Limitation on Secured Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.06. Sale and Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.07. Restrictions on Transfer of Principal Property to Unrestricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.08. Certificate to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.09. Waivers of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SIX.
Holders' Lists and Reports by the Company and the Trustee.
SECTION 6.01. Holders' Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.02. Preservation and Disclosure of Lists . . . . . . . . . . . . . . . . . . . . . . . . 39
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SECTION 6.03. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.04. Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE SEVEN.
Remedies of the Trustee and Holders on Event of Default.
SECTION 7.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.02. Payment of Debt Securities Upon Default; Suit Therefor . . . . . . . . . . . . . 43
SECTION 7.03. Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . 45
SECTION 7.04. Proceedings by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.05. Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.06. Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.08. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.09. Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.10. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE EIGHT.
Concerning the Trustee.
SECTION 8.01. Duties and Responsibilities of Trustee . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.02. Reliance on Documents, Opinions, etc . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.03. No Responsibility for Recitals, etc . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.04. Trustee and Agents May Own Debt Securities . . . . . . . . . . . . . . . . . . . 50
SECTION 8.05. Moneys to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.06. Compensation and Expenses of Trustee . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.07. Officers' Certificate as Evidence . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.08. Conflicting Interest of Trustee . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.09. Eligibility of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.10. Resignation or Removal of Trustee . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.11. Acceptance by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.12. Succession by Merger, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.13. Limitation on Rights of Trustee as a Creditor . . . . . . . . . . . . . . . . . 55
SECTION 8.14. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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ARTICLE NINE.
Concerning the Holders.
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SECTION 9.01. Action by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.02. Proof of Execution by Holders . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.03. Who Are Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 9.04. Company-Owned Debt Securities Disregarded . . . . . . . . . . . . . . . . . . 59
SECTION 9.05. Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . 59
ARTICLE TEN
Holders' Meetings.
SECTION 10.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.02. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.03. Call of Meetings by Company or Holders . . . . . . . . . . . . . . . . . . . 61
SECTION 10.04. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.07. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE ELEVEN.
Supplemental Indentures.
SECTION 11.01. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . 63
SECTION 11.02. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . 65
SECTION 11.03. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.04. Notation on Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE TWELVE.
Consolidation, Merger, Sale and Conveyance.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . . 66
SECTION 12.02. Successor Corporation to be Substituted . . . . . . . . . . . . . . . . . . . 67
SECTION 12.03. Opinion of Counsel to Be Given Trustee . . . . . . . . . . . . . . . . . . . 68
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ARTICLE THIRTEEN.
Satisfaction and Discharge of Indenture.
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SECTION 13.01. Satisfaction, Discharge and Defeasance of Debt Securities
of any Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 13.02. Defeasance of Debt Securities of any Series . . . . . . . . . . . . . . . . . . 70
SECTION 13.03. Application of Trust Funds; Indemnification . . . . . . . . . . . . . . . . . . 71
SECTION 13.04. Return of Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders, Officers and Directors.
SECTION 14.01. Indenture and Debt Securities Solely Corporate Obligations . . . . . . . . . . 72
ARTICLE FIFTEEN.
Miscellaneous Provisions.
SECTION 15.01. Provisions Binding on Successors of the Company . . . . . . . . . . . . . . . . 73
SECTION 15.02. Indenture for Sole Benefit of Parties and Holders of Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 15.03. Addresses for Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 15.04. New York Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.05. Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . 74
SECTION 15.06. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.07. Trust Indenture Act of 1939 to Control . . . . . . . . . . . . . . . . . . . . 75
SECTION 15.08. Table of Contents, Headings, etc . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 15.09. Determination of Principal Amount . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 15.10. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
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CROSS REFERENCE SHEET
BETWEEN
Provisions of Sections 310 through 318(a) inclusive of Trust Indenture Act of
1939 and the Indenture dated as of February 22, 1995 between Johnson Controls,
Inc. and Chemical Bank Delaware, as Trustee.
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310(a)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . 8.09
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . *
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08 and 8.10
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . *
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13(a)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . *
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01 and 6.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(c)
313(a)(1), (2), (3), (4), (6) and (7) . . . . . . . . . . . . 6.04(a)(1-6)
313(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . *
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . *
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(d)
314(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(a)
314(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(b)
314(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(c)
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . *
314(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05
314(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . *
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . *
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . *
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . 8.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.07
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . *
316(a) last para. . . . . . . . . . . . . . . . . . . . . . . 9.04
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
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* Not applicable.
** This cross reference sheet shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 9
THIS INDENTURE, dated as of February 22, 1995,
between Johnson Controls, Inc., a Wisconsin corporation (the "Company"), and
Chemical Bank Delaware, a Delaware banking corporation, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issue from time to time of its
unsecured debentures, notes, bonds or other evidences of indebtedness to be
issued in one or more series as in this Indenture provided, up to such
principal amount or amounts as may from time to time be authorized in or
pursuant to one or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase or acceptance of the Debt Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of the
respective Holders from time to time of the Debt Securities or of any series
thereof as follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. The terms defined in
this Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act of 1939 or which are by reference therein defined in
the Securities Act of 1933, as amended, shall have (except as herein otherwise
expressly provided or unless the context otherwise requires) the meanings
assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of the execution of this Indenture. All
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles and, except as
otherwise herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the date of
such computation. All references to such terms herein shall be both to the
singular or the plural, as the context so requires.
<PAGE> 10
AFFILIATE:
The term "Affiliate", when used with respect to any
specified Person, means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
AUTHENTICATING AGENT:
The term "Authenticating Agent" shall mean the agent
of the Trustee, if any, which at the time shall be appointed and acting
pursuant to Section 8.14.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of
Directors of the Company or any authorized committee of such Board designated
by the Board of Directors or the by-laws or the articles of incorporation of
the Company to act for such Board for purposes of this Indenture.
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a
resolution certified by a Vice President, the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
BUSINESS DAY:
The term "Business Day", when used with respect to
any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law to close.
CAPITALIZED RENT:
The term "Capitalized Rent" means the total net
amount of rent payable for the remaining term as of the date of determination
thereof under a lease of Principal Property by the Company or any of its
Restricted Subsidiaries, discounted from the respective due dates thereof to
such date at the rate per annum equal to the weighted average interest rate
borne by the Debt Securities. The weighted average interest rate borne by the
Debt Securities shall be calculated by dividing the aggregate of the annual
interest payments
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required on the Debt Securities, based on the amount Outstanding at the latest
date any Debt Securities were issued hereunder, by the aggregate principal
amount of the Debt Securities Outstanding at such date. The total net amount
of rent payable under any such lease for any period shall be the total amount
of the rent payable by the lessee with respect to such period but shall not
include amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates, sewer rents and similar charges and
contingent rents such as those based on sales. The remaining term under any
lease shall be calculated without giving effect to any unexercised option of
the lessee for the renewal or extension of any term. In the case of any lease
which is terminable by the lessee upon the payment of a penalty, such net
amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated.
COMPANY:
The term "Company" shall mean Johnson Controls, Inc.,
a Wisconsin corporation, and, subject to Article Twelve, shall include its
successors and assigns.
COMPANY REQUEST AND COMPANY ORDER:
The terms "Company Request" and "Company Order" mean,
respectively, a written request or order signed in the name of the Company by
its Chairman of the Board, Vice Chairman of the Board, President or a Vice
President, and by its Treasurer, Secretary, Assistant Secretary or Assistant
Treasurer, and delivered to the Trustee.
CONSOLIDATED CURRENT LIABILITIES:
The term "Consolidated Current Liabilities" means the
aggregate of the current liabilities of the Company and its Restricted
Subsidiaries (excluding liabilities of Unrestricted Subsidiaries and excluding
billings on uncompleted contracts in excess of related costs and profits)
appearing on the most recent available consolidated balance sheet of the
Company and its Restricted Subsidiaries, all in accordance with generally
accepted accounting principles; provided, however, that in no event shall
Consolidated Current Liabilities include any obligation of the Company and its
Restricted Subsidiaries issued under a revolving credit or similar agreement if
the obligation issued under such agreement matures by its terms within 12
months from the date thereof but by the terms of such agreement such obligation
may be renewed or extended or the amount thereof reborrowed or refunded at the
option of the Company or any Restricted Subsidiary for a term in excess of 12
months from the date of determination.
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CONSOLIDATED NET TANGIBLE ASSETS:
The term "Consolidated Net Tangible Assets" means
Consolidated Tangible Assets after deduction of Consolidated Current
Liabilities.
CONSOLIDATED TANGIBLE ASSETS:
The term "Consolidated Tangible Assets" means the
aggregate of all assets of the Company and its Restricted Subsidiaries
(including the value of all existing Sale and Leaseback Transactions and any
assets resulting from the capitalization of other long-term lease obligations
in accordance with generally accepted accounting principles but excluding the
value of assets or investments in any Unrestricted Subsidiary or any
non-majority-owned Subsidiary) appearing on the most recent available
consolidated balance sheet of the Company and its Restricted Subsidiaries at
their net book values, after deducting related depreciation, amortization and
other valuation reserves and excluding (a) any capital write-ups resulting from
reappraisals of assets or of other investments after December 31, 1994 (other
than a write-up of any assets constituting part of the assets and business of
another corporation made in connection with the acquisition, direct or
indirect, of the assets and business of such other corporation) except as
permitted in accordance with generally accepted accounting principles, (b)
treasury stock, (c) patent and trademark rights, good will, unamortized
discounts and expenses and any other intangible items, all in accordance with
generally accepted accounting principles.
CONVERSION DATE:
The term "Conversion Date" shall have the meaning set
forth in Section 3.11:
CURRENCY DETERMINATION AGENT:
The term "Currency Determination Agent" shall mean
the financial institution, if any, from time to time selected by the Company
and approved by the Trustee for purposes of Section 3.11.
CURRENT MARKET PRICE:
The term "Current Market Price" means the closing
price (or, if none, the average of the last daily bid and asked prices) of the
applicable class of capital stock as quoted by the primary securities exchange
on which the stock is traded, or, if none, the primary inter-dealer quotation
system, which reports quotations for the class of capital stock, for the last
trading day immediately prior to the Calculation Date.
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<PAGE> 13
DEBT SECURITY OR DEBT SECURITIES:
The terms "Debt Security" or "Debt Securities" shall
mean any unsecured notes, debentures or other indebtedness of any series, as
the case may be, issued by the Company from time to time, and authenticated and
delivered under this Indenture.
DEBT SECURITY REGISTER:
The term "Debt Security Register" shall have the
meaning set forth in Section 3.06.
DEPOSITORY:
The term "Depository" shall mean, unless otherwise
specified by the Company pursuant to Section 3.01, with respect to Securities
of any series issuable or issued as a Global Security, The Depository Trust
Company, New York, New York, or any successor thereto registered as a clearing
agency pursuant to the provisions of Section 17A of the Securities Exchange Act
of 1934, as amended, or other applicable statute or regulation.
DOLLAR:
The terms "Dollar" shall mean the coin or currency of
the United States of America which as of the time of payment is legal tender
for the payment of public and private debts.
DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY:
The term "Dollar Equivalent of the Foreign Currency"
shall have the meaning set forth in Section 3.11.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event
specified in Section 7.01, continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
FOREIGN CURRENCY:
The term "Foreign Currency" shall mean a currency
issued by the government of any country other than the United States of
America.
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<PAGE> 14
FUNDED DEBT:
The term "Funded Debt" means all indebtedness for
money borrowed having a maturity of more than twelve months from the date of
the most recent consolidated balance sheet of the Company and its Restricted
Subsidiaries (excluding indebtedness of Unrestricted Subsidiaries) or renewable
and extendible beyond twelve months at the option of the borrower and all
obligations in respect of lease rentals which under generally accepted
accounting principles would be shown on a consolidated balance sheet of the
Company as a liability item other than a current liability; provided, however,
that Funded Debt shall not include any of the foregoing to the extent that such
indebtedness or obligations are not required by generally accepted accounting
principles to be shown on the balance sheet of the Company.
GLOBAL DEBT SECURITY:
The term "Global Debt Security" means a Debt
Security issued to evidence all or part of a series of Debt Securities.
GOVERNMENT OBLIGATIONS:
The term "Government Obligations" means securities
which are (i) direct obligations of the government which issued the currency in
which the Debt Securities of a series are denominated or (ii) obligations of a
person controlled or supervised by and acting as an agency or instrumentality
of the government which issued the currency in which the Debt Securities of
such series are denominated, the payment of which obligations is
unconditionally guaranteed by such government, and which, in either case, are
full faith and credit obligations of such government, are denominated in the
currency in which the Debt Securities of such series are denominated and which
are not callable or redeemable at the option of the issuer thereof.
HOLDER:
The term "Holder" means any Person in whose name a
Debt Security of any series is registered in the Debt Security Register
applicable to Debt Securities of such series.
INDENTURE:
The term "Indenture" shall mean this instrument as
originally executed or, if amended or supplemented as herein provided, as so
amended or supplemented, pursuant to the applicable provisions hereof.
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<PAGE> 15
INDEXED DEBT SECURITY
The term "Indexed Debt Security" means a Debt
Security the terms of which provide that the principal amount thereof payable
at Stated Maturity may be more or less than the principal face amount thereof
at original issuance.
INTEREST:
The term "interest", when used with respect to an
Original Issue Discount Debt Security which by its terms bears interest only
after maturity, means interest payable after maturity.
INTEREST PAYMENT DATE:
The term "Interest Payment Date", when used with
respect to any series of Debt Securities, means the Stated Maturity of an
installment of interest on such Debt Securities.
MARKET EXCHANGE RATE:
The term "Market Exchange Rate" shall have the
meaning set forth in Section 3.11.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate", when used with
respect to the Company, shall mean a certificate signed by its Chairman of the
Board, Vice Chairman of the Board, President, or a Vice President and by its
Treasurer, Secretary, Assistant Secretary or Assistant Treasurer and delivered
to the Trustee. Each such certificate shall include the statements provided
for in Section 15.05 to the extent required by the provisions of such Section.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion
in writing signed by legal counsel who may be an employee of or counsel to the
Company, and who shall be reasonable acceptable to the Trustee. Each such
opinion shall include the statements provided for in Section 3.04 and Section
15.05 to the extent required by the provisions of such Sections.
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<PAGE> 16
ORIGINAL ISSUE DISCOUNT DEBT SECURITY:
The term "Original Issue Discount Date Security"
means any Debt Security which provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 7.01.
OUTSTANDING:
The term "Outstanding", when used with respect to
Debt Securities or Debt Securities of any series, means, as of the date of
determination, all such Debt Securities theretofore authenticated and delivered
under this Indenture, except:
(i) such Debt Securities theretofore cancelled
by the Trustee or delivered to the Trustee for
cancellation;
(ii) such Debt Securities for whose payment or
redemption money in the necessary amount and in the
specified currency has been theretofore deposited
with the Trustee or any paying agent (other than the
Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its
own paying agent) for the Holders of such Debt
Securities, provided, however, that if such Debt
Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) such Debt Securities in exchange for or in
lieu of which other such Debt Securities have been
authenticated and delivered pursuant to this
Indenture, or such Debt Securities which have been
paid, pursuant to this Indenture, unless proof
satisfactory to the Trustee is presented that any
such Debt Securities are held by Persons in whose
hands any of such Debt Securities are a legal, valid
and binding obligation of the Company, and
(iv) such Debt Securities the indebtedness in
respect to which has been discharged in accordance
with Section 13.02.
provided, however, that in determining whether the Holders of the requisite
principal amount of such Outstanding Debt Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, such
Debt Securities owned by the Company or such other obligor upon such Debt
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only such Debt
Securities which the Trustee knows to be so owned shall be so disregarded.
Such Debt Securities so owned
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<PAGE> 17
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Debt Securities and that the pledgee is not the
Company or any other such obligor upon such Debt Securities or any Affiliate of
the Company or such other obligor. In case of a dispute as to such right, the
decision of the Trustee upon the advice of counsel shall be full protection to
the Trustee. Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all such Debt
Securities, if any, known by the Company to be owned or held by or for the
account of any of the above described Persons; and, subject to the provisions
of Section 8.01, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all such Debt Securities not listed therein are Outstanding for the
purpose of any such determination.
PERSON:
The term "Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
PLACE OF PAYMENT:
The term "Place of Payment", when used with respect
to the Debt Securities of any series, means the place or places where the
principal of (premium, if any) and interest on the Debt Securities of that
series are payable as specified in accordance with Section 3.01.
PREDECESSOR DEBT SECURITY:
The term "Predecessor Debt Security" of any
particular Debt Security means every previous Debt Security evidencing all or a
portion of the same debt as that evidenced by such particular Debt Security,
and for the purposes of this definition, any Debt Security authenticated and
delivered under Section 3.07 in lieu of a mutilated, lost, destroyed or stolen
Debt Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Debt Security.
PRINCIPAL OFFICE OF THE TRUSTEE:
The term "principal office of the Trustee", or other
similar terms, means the principal office of the Trustee in Wilmington,
Delaware, at which at any particular time its corporate trust business shall be
administered, which office on the date hereof is located at 222 Delaware
Avenue, Wilmington, Delaware 19801.
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PRINCIPAL PROPERTY:
The term "Principal Property" means any manufacturing
plant, warehouse, office building or parcel of real property (including
fixtures but excluding leases and other contract rights which might otherwise
be deemed real property) owned by the Company or any Restricted Subsidiary,
whether owned on the date hereof or thereafter, provided each such plant,
warehouse, office building or parcel of real property has a gross book value
(without deduction for any depreciation reserves) at the date as of which the
determination is being made of in excess of two percent of the Consolidated Net
Tangible Assets of the Company and the Restricted Subsidiaries, other than any
such plant, warehouse, office building or parcel of real property or portion
thereof which, in the opinion of the Board of Directors (evidenced by a
certified Board Resolution thereof delivered to the Trustee), is not of
material importance to the business conducted by the Company and its Restricted
Subsidiaries taken as a whole.
PUBLIC NOTICE:
The term "Public Notice" shall, without limitation,
include any filing or report made in accordance with the requirements of the
Securities and Exchange Commission or any press release or public announcement
made by the Company.
REDEMPTION DATE:
The term "Redemption Date", when used with respect to
any Debt Security to be redeemed, means the date fixed for such redemption by
or pursuant to this Indenture.
REDEMPTION PRICE:
The term "Redemption Price", when used with respect
to any Debt Security to be redeemed, means the price specified in such Debt
Security at which it is to be redeemed pursuant to this Indenture.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest
payable on any Debt Security on any Interest Payment Date means the date
specified in such Debt Security as the "Regular Record Date" as contemplated by
Section 3.01.
RESPONSIBLE OFFICER:
The term "Responsible Officer", when used with
respect to the Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive committee of the
board of directors, the chairman of the trust
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committee, the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
RESTRICTED SUBSIDIARY:
The term "Restricted Subsidiary" means (a) any
Subsidiary other than an Unrestricted Subsidiary and (b) any Subsidiary which
was an Unrestricted Subsidiary but which, subsequent to December 31, 1994, is
designated by the Company (by Board Resolution) to be a Restricted Subsidiary;
provided however, that the Company may not designate any such Subsidiary to be
a Restricted Subsidiary if the Company would thereby breach any covenant or
agreement herein contained (on the assumptions that any outstanding Secured
Debt of such Subsidiary was incurred at the time of such designation and that
any Sale and Leaseback Transaction (as defined in Section 5.06) to which such
Subsidiary is then a party was entered into at the time of such designation).
SECURED DEBT:
The term "Secured Debt" means indebtedness for money
borrowed and any Funded Debt which is secured by a Security Interest in (a) any
Principal Property or (b) any shares of capital stock or indebtedness of any
Restricted Subsidiary.
SECURITY INTEREST:
The term "Security Interest" shall mean any mortgage,
pledge, lien, encumbrance, conditional sale, title retention agreement or other
security interest which secures payment or performance of an obligation.
SPECIAL RECORD DATE:
The term "Special Record Date" for the payment of any
Defaulted Interest (as defined in Section 3.08) means a date fixed by the
Trustee pursuant to Section 3.08.
STATED MATURITY:
The term "Stated Maturity" when used with respect to
any Debt Security or any instalment of principal thereof or of interest
thereon, means the date specified in such Debt Security as the fixed date on
which the principal of such Debt Security, or such instalment of interest, is
due and payable.
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SUBSIDIARY:
The term "Subsidiary" means any corporation of which
the Company, or the Company and one or more Subsidiaries, or any one or more
Subsidiaries, directly or indirectly own more than 50% of the Voting Stock.
TRUSTEE:
The term "Trustee" shall mean Chemical Bank
(Delaware) and, subject to the provisions of Article Eight hereof, shall also
include its successors and assigns as Trustee hereunder.
TRUST INDENTURE ACT OF 1939:
The term "Trust Indenture Act of 1939" means the
Trust Indenture Act of 1939, as amended, as in force at the date as of which
this Indenture was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act of 1939"
means to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
UNRESTRICTED SUBSIDIARY:
The term "Unrestricted Subsidiary" means (a) any
Subsidiary acquired or organized after March 31, 1989, provided, however, that
such Subsidiary shall not be a successor, directly or indirectly, to any
Restricted Subsidiary; (b) any Subsidiary whose principal business or assets
are located outside the United States of America, its territories and
possessions, Puerto Rico or Canada; (c) any Subsidiary the principal business
of which consists of financing or assisting in financing of customer
construction projects or the acquisition or disposition of products of dealers,
distributors or other customers; (d) any Subsidiary engaged in the insurance
business or whose principal business is the ownership, leasing, purchasing,
selling or development of real property; and (e) any Subsidiary substantially
all the assets of which consist of stock or other securities of a Subsidiary or
Subsidiaries of a character described in clauses (a) through (d) of this
paragraph, unless and until any such Subsidiary shall have been designated to
be a Restricted Subsidiary pursuant to clause (b) of the definition of
"Restricted Subsidiary."
VALUATION DATE:
The term "Valuation Date" shall have the meaning set
forth in Section 3.11.
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VOTING STOCK:
The term "Voting Stock" means outstanding shares of
capital stock having under ordinary circumstances voting power for the election
of directors whether at all times or only so long as no senior class of stock
has such voting power by reason of the happening of any contingency.
ARTICLE TWO.
DEBT SECURITY FORMS.
SECTION 2.01. Forms Generally. The Debt Securities
of each series and the certificates of authentication thereon shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture (the provisions of which shall be
appropriate to reflect the terms of each series of Debt Securities, including
the currency or denomination, which may be Dollars or Foreign Currency), and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon, as may be required to comply with the
rules of any securities exchange, or as may, consistently herewith, be
determined by the officers executing such Debt Securities, as evidenced by
their signing of such Debt Securities. Any portion of the text of any Debt
Security may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Debt Security.
The definitive Debt Securities shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange, all as determined by the officers executing such Debt Securities, as
evidenced by their signing of such Debt Securities.
SECTION 2.02. Forms of Debt Securities. The Debt
Securities of each series shall be in such form or forms (including global
form) as shall be established by or pursuant to a Board Resolution.
Prior to the delivery of a Debt Security of any
series in any such form to the Trustee for the Debt Securities of such series
for authentication, the Company shall deliver to the Trustee the following:
(1) The Board Resolution by or pursuant to which
such form of Debt Security has been approved;
(2) An Officers' Certificate dated the date such
Certificate is delivered to the Trustee stating that all conditions precedent
provided for in this Indenture relating to the authentication and delivery of
Debt Securities in such form have been complied with; and
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(3) An Opinion of Counsel stating that Debt
Securities in such form, together with any coupons appertaining thereto, when
(a) completed by appropriate insertions and executed and delivered by the
Company to the Trustee for authentication in accordance with this Indenture,
(b) authenticated and delivered by such Trustee in accordance with this
Indenture within the authorization as to aggregate principal amount established
from time to time by the Board of Directors, and (c) sold in the manner
specified in such Opinion of Counsel, will be the legal, valid and binding
obligations of the Company, subject to applicable bankruptcy, reorganization,
insolvency and other similar laws generally affecting creditors' rights, to
general equitable principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of such Debt
Securities.
The definitive Debt Securities and coupons, if any,
shall be printed, lithographed or engraved or produced by any combination of
these methods on a steel engraved border or steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Debt Securities or coupons, as evidenced by their execution thereof.
SECTION 2.03. Form of Trustee's Certificate of
Authentication. The following is the form of the Certificate of Authentication
of the Trustee to be endorsed on the face of all Debt Securities substantially
as follows:
This is one of the Debt Securities of the series
designated herein issued under the within-mentioned
Indenture.
CHEMICAL BANK DELAWARE
as Trustee
By_________________________________
Authorized Officer
SECTION 2.04. Debt Securities in Global Form. (a)
If the Company shall establish pursuant to Section 3.01 that the Debt
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Debt Securities, then the Company shall execute and
the Trustee or its agent shall, in accordance with Section 3.04 and the Company
Order delivered to the Trustee or its agent thereunder, authenticate and
deliver such Global Debt Security or Global Debt Securities, which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Debt Securities of such series to be
represented by such Global Debt Security or Global Debt Securities, or such
portion thereof as the Company shall specify in a Company Order, (ii) shall be
registered in the name of the Depository for such Global Debt Security or
Global Debt Securities or its nominee, (iii) shall be delivered by the Trustee
or its agent to the Depository or pursuant to the Depository's instruction and
(iv) shall bear a legend
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substantially to the following effect: "Unless this certificate is presented
by an authorized representative of the Depository to the Company or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of the nominee of the Depository or in such other
name as is requested by an authorized representative of the Depository (and any
payment is made to the nominee of the Depository or to such other entity as is
requested by an authorized representative of the Depository), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, the nominee of the
Depository, has an interest herein."
(b) Notwithstanding any other provision of this
Section 2.04 or of Section 3.06, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Debt Security expressly permit such Global
Debt Security to be exchanged in whole or in part for individual certificates
representing Debt Securities, a Global Debt Security may be transferred, in
whole but not in part and in the manner provided in Section 3.06, only to a
nominee of the Depository for such Global Debt Security, or to the Depository,
or a successor Depository for such Global Debt Security selected or approved by
the Company, or to a nominee of such successor Depository.
(c) (1) If at any time the Depository for a Global
Debt Security notifies the Company that it is unwilling or unable to continue
as Depository for such Global Debt Security or if at any time the Depository
for the Global Debt Securities for such series shall no longer be eligible or
in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a successor
Depository with respect to such Global Debt Security. If a successor
Depository for such Global Debt Security is not appointed by the Company within
90 days after the Company receives notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee or its agent, upon
receipt of a Company Request for the authentication and delivery of
certificates representing Debt Securities of such series in exchange for such
Global Debt Security, will authenticate and deliver, certificates representing
Debt Securities of such series of like tenor and terms in an aggregate
principal amount equal to the principal amount of the Global Debt Security in
exchange for such Global Debt Security.
(2) The Company may at any time and in its sole
discretion determine that the Debt Securities of any series or portion thereof
issued or issuable in the form of one or more Global Debt Securities shall no
longer be represented by such Global Debt Security or Global Debt Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Request for the authentication and delivery of certificates
representing Debt Securities of such series in exchange in whole or in part for
such Global Debt Security, will authenticate and deliver certificates
representing Debt Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such Global Debt Security or Global Debt Securities representing such series
or portion thereof in exchange for such Global Debt Security or Global Debt
Securities.
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(3) If specified by the Company pursuant to Section
3.01 with respect to Debt Securities issued or issuable in the form of a Global
Debt Security, the Depository for such Global Debt Security may surrender such
Global Debt Security in exchange in whole or in part for certificates
representing Debt Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and such
Depository. Thereupon the Company shall execute, and the Trustee or its agent
shall authenticate and deliver, without a service charge, (1) to each Holder
specified by the Security Registrar or the Depository a certificate or
certificates representing Securities of the same series of like tenor and terms
and of any authorized denomination as requested by such person in an aggregate
principal amount equal to and in exchange for such Holder's beneficial interest
as specified by the Security Registrar or the Depository in the Global Debt
Security; and (2) to such Depository a new Global Debt Security of like tenor
and terms and in an authorized denomination equal to the difference, if any,
between the principal amount of the surrendered Global Debt Security and the
aggregate principal amount of certificates representing Debt Securities
delivered to Holders thereof.
(4) In any exchange provided for in any of the
preceding three paragraphs, the Company will execute and the Trustee or its
agent will authenticate and deliver certificates representing Debt Securities
in definitive registered form in authorized denominations for Debt Securities
of the same series or any integral multiple thereof. Upon the exchange of the
entire principal amount of a Global Debt Security for certificates representing
Debt Securities, such Global Debt Security shall be cancelled by the Trustee or
its agent. Except as provided in the preceding paragraph, certificates
representing Debt Securities issued in exchange for a Global Debt Security
pursuant to this Section shall be registered in such names and in such
authorized denominations for Debt Securities of that Series or any integral
multiple thereof, as the Security Registrar or Depository shall instruct the
Trustee or its agent. The Trustee or the Security Registrar shall deliver at
its Corporate Trust Office such certificates representing Debt Securities to
the Holders in whose names such Debt Securities are so registered.
ARTICLE THREE.
THE DEBT SECURITIES.
SECTION 3.01. Title and Terms. The aggregate
principal amount of Debt Securities which may be authenticated and delivered
under this Indenture is unlimited. The Debt Securities may be issued up to the
aggregate principal amount of Debt Securities from time to time authorized by
or pursuant to a Board Resolution.
The Debt Securities may be issued in one or more
series. All Debt Securities of each series issued under this Indenture shall
in all respects be equally and ratably entitled to the benefits hereof with
respect to such series without preference, priority
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or distinction on account of the actual time or times of the authentication and
delivery or maturity of the Debt Securities of such series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate to the extent not established in a Board Resolution, or established
in one or more indentures supplemental hereto, prior to the issuance of Debt
Securities of any series:
(1) the title of the Debt Securities of the
series (which shall distinguish the Debt Securities
of the series from all other series of Debt
Securities);
(2) any limit upon the aggregate principal
amount of the Debt Securities of the series which may
be authenticated and delivered under this Indenture
(except for Debt Securities authenticated and
delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of
that series pursuant to this Article Three, the
second paragraph of Section 4.03, or Section 11.04);
(3) the date or dates (or the manner of
calculation thereof) on which the principal of the
Debt Securities of the series is payable;
(4) the rate or rates (or the manner of
calculation thereof) at which the Debt Securities of
the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall
be payable and the Regular Record Date for the
Interest payable on any Interest Payment Date;
(5) the Place of Payment;
(6) the period or periods within which, the
price or prices at which, the currency or currency
units in which, and the terms and conditions upon
which Debt Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to
redeem or purchase Debt 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 in the
currency at which, the currency or currency units in
which, and the terms and conditions upon which Debt
Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such
obligation;
(8) the denominations in which the Debt
Securities of such series shall be issuable if other
than denominations of $1,000 and any integral
multiple thereof;
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(9) the application, if any, of Section 13.02;
(10) if other than Dollars, the currencies in
which payments of interest or principal of (and
premium, if any, with respect to) the Debt Securities
of the series are to be made;
(11) if the interest on or principal of (or
premium, if any, with respect to) the Debt Securities
of the series are to be payable, at the election of
the Company or a Holder thereof or otherwise, in a
currency other than that in which such Debt
Securities are payable, the period or periods within
which, and the other terms and conditions upon which,
such election may be made, and the time and manner of
determining the exchange rate between the currency in
such Debt Securities are denominated or stated to be
payable and the currency in which such Debt
Securities or any of them are to be so payable;
(12) whether the amount of payments of
interest on or principal of (or premium, if any, with
respect to) the Debt Securities of such series may be
determined with reference to an index, formula or
other method (which index, formula or method or
method may be based, without limitation, on one or
more currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon
which and the manner in which such amounts shall be
determined and paid or payable;
(13) the extent to which any Debt Securities
will be issuable in permanent global form, the manner
in which any payments on a permanent global Debt
Security will be made, and the appointment of any
Depository relating thereto;
(14) any deletions from, modifications of or
additions to the Events of Default or covenants with
respect to the Debt Securities of such series,
whether or not such Events of Default or covenants
are consistent with the Events of Default or
covenants set forth herein;
(15) if any of the Debt Securities of such
series are to be issuable upon the exercise of
warrants, this shall be so established as well as the
time, manner and place for such Debt Securities to be
authenticated and delivered;
(16) any other terms of the series (which
terms shall not be inconsistent with the provisions
of this Indenture).
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All Debt Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise
be provided in or pursuant to such Board Resolution and set forth in such
Officers' Certificate or in any such indenture supplemental hereto.
SECTION 3.02. Denominations. The Debt Securities of
each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated in Section 3.01. In the
absence of any specification with respect to the Debt Securities of any series,
the Debt Securities of such series shall be issuable in denominations of $1,000
and any integral multiple thereof, which may be in Dollars or any Foreign
Currency.
SECTION 3.03. Payment of Principal and Interest.
The principal of, premium, if any, and interest on the Debt Securities shall be
payable at the office or agency of the Company designated for that purpose in
the Place of Payment, as provided in Section 5.02; provided, however, that
interest may be payable at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear on the Debt
Security Register on the record date for such interest payment.
SECTION 3.04. Execution of Debt Securities. The
Debt Securities shall be executed manually or by facsimile in the name and on
behalf of the Company by its Chairman of the Board of Directors, its President,
one of its Vice Presidents or its Treasurer and by its Secretary or one of its
Assistant Secretaries under its corporate seal (which may be printed, engraved
or otherwise reproduced thereon, by facsimile or otherwise). Only such Debt
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, manually executed by the Trustee, shall be
entitled to the benefits of this Indenture or be valid or become obligatory for
any purpose. Such certificate by the Trustee upon any Debt Security executed
by the Company shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have
executed any of the Debt Securities shall cease to be such officer before the
Debt Securities so executed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Debt Securities nevertheless shall
be valid and binding and may be authenticated and delivered or disposed of as
though the Person who executed such Debt Securities had not ceased to be such
officer of the Company; and any Debt Securities may be executed on behalf of
the Company by such Persons as, at the actual date of the execution of such
Debt Security, shall be the proper officers of the Company, although at the
date of such Debt Security or of the execution of this Indenture any such
Person was not such an officer.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Debt Securities of any
series, properly created in accordance with Section 3.01 and executed by the
Company, to the Trustee for
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authentication; and the Trustee shall authenticate and deliver such Debt
Securities upon Company Order. In the event that any other Person performs the
Trustee's duties as Authenticating Agent pursuant to a duly executed agreement,
the Company shall notify the Trustee in writing of the issuance of any Debt
Securities hereunder, such notice to be delivered in accordance with the
provisions of Section 15.03 on the date such Debt Securities are delivered by
the Company for authentication to such other Person.
Prior to any such authentication and delivery, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, in addition to the Opinion of Counsel to be furnished to the Trustee
pursuant to Section 15.05 and the Officers' Certificate relating to the
issuance of any series of Debt Securities pursuant to Sections 15.05 and 3.01,
Opinions of Counsel stating that:
(1) all instruments furnished to the Trustee
conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the
Trustee to authenticate and deliver such Debt
Securities;
(2) all laws and requirements with respect to the
form and execution by the Company of the supplemental
indenture, if any, have been complied with, the
execution and delivery of the supplemental indenture,
if any, will not violate the terms of this Indenture,
the supplemental indenture has been duly qualified
under the Trust Indenture Act of 1939, the Company
has corporate power to execute and deliver any such
supplemental indenture and has taken all necessary
corporate action for those purposes and any such
supplemental indenture has been executed and
delivered and constitutes the legal, valid and
binding obligation of the Company enforceable in
accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to
time in effect);
(3) the form and terms of such Debt Securities
have been established in conformity with the
provisions of this Indenture;
(4) all laws and requirements with respect to the
execution and delivery by the Company of such Debt
Securities have been complied with, the
authentication and delivery of the Debt Securities by
the Trustee will not violate the terms of this
Indenture, the Company has the corporate power to
issue such Debt Securities and such Debt Securities,
assuming due authentication and delivery by the
Trustee, constitute legal, valid and binding
obligations of the Company in accordance with their
terms and are entitled to the benefits of this
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Indenture, equally and ratably with all other
Outstanding Debt Securities, if any, of such series;
and
(5) such other matters as the Trustee may
reasonably request.
The Trustee shall not be required to authenticate
such Debt Securities if the issue thereof will adversely affect the Trustee's
own rights, duties or immunities under the Debt Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee or
such action would expose the Trustee to personal liability to existing Holders.
Unless otherwise provided in the form of Debt
Security for any series, all Debt Securities shall be dated the date of their
authentication.
No Debt Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Debt Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Debt Security shall be conclusive evidence, and the
only evidence, that such Debt Security has been duly authenticated and
delivered hereunder.
SECTION 3.05. Temporary Debt Securities. Pending
the preparation of definitive Debt Securities of any series, the Company may
execute, and upon receipt of the documents required by Sections 2.02, 3.01 and
3.04, together with a Company Order, the Trustee shall authenticate and
deliver, such temporary Debt Securities which may be printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denominations, substantially of the tenor of such definitive Debt Securities in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such temporary
Debt Securities may determine, as evidenced by their execution of such
temporary Debt Securities.
If temporary Debt Securities of any series are
issued, the Company will cause definitive Debt Securities of such series to be
prepared without unreasonable delay. After the preparation of definitive Debt
Securities of any series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series, upon surrender of
the temporary Debt Securities of such series at any office or agency maintained
by the Company for such purposes as provided in Section 5.02, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary Debt
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefore a like principal amount of
definitive Debt Securities of such series having the same interest rate and
Stated Maturity and bearing interest from the same date of any authorized
denominations. Until so exchanged the temporary Debt Securities of such series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of such series.
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SECTION 3.06. Exchange and Registration of Transfer
of Debt Securities. Debt Securities may be exchanged for a like aggregate
principal amount of Debt Securities of such series that are of other authorized
denominations. Debt Securities to be exchanged shall be surrendered at any
office or agency to be maintained for such purpose by the Company, as provided
in Section 5.02, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefore the Debt Security or Debt
Securities of authorized denominations which the Debt Securityholder making the
exchange shall be entitled to receive. Each agent of the Company appointed
pursuant to Section 5.02 as a person authorized to register and register
transfer of Debt Securities is sometimes herein referred to as a "Debt Security
registrar."
The Company shall keep, at each such office or agency
of the Company maintained for such purpose, as provided in Section 5.02, a
register for each series of Debt Securities hereunder (the registers of all
Debt Security registrars being herein sometimes collectively referred to as the
"Debt Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Debt
Securities and shall register the transfer of Debt Securities as in this
Article Three provided. At all reasonable times, such Debt Security Register
shall be open for inspection by the Trustee and any Debt Security registrar
other than the Trustee. Upon due presentment for registration of transfer of
any Debt Security at any such office or agency, the Company shall execute and
register and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Debt Security or Debt Securities of authorized
denominations for an equal aggregate principal amount. Registration or
registration of transfer of any Debt Security by any Debt Security registrar in
the registry books maintained by such Debt Security registrar, and delivery of
such Debt Security, duly authenticated, shall be deemed to complete the
registration or registration of transfer of such Debt Security.
The Company will at all times designate one Person
(who may be the Company and who need not be a Debt Security registrar) to act
as repository of a master list of names and addresses of Holders of the Debt
Securities. The Trustee shall act as such repository unless and until some
other Person is, by written notice from the Company to the Trustee and each
Debt Security registrar, designated by the Company to act as such. The Company
shall cause each Debt Security registrar to furnish to such repository, on a
current basis, such information as such repository may reasonably request as to
registrations, transfers, exchanges and other transactions effected by such
registrar, as may be necessary or advisable to enable such repository to
maintain such master list on as current a basis as is reasonably practicable.
No Person shall at any time be appointed as or act as
a Debt Security registrar unless such Person is at such time empowered under
applicable law to act as such and duly registered to act as such under and to
the extent required by applicable law and regulations.
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All Debt Securities presented to a Debt Security
registrar for registration of transfer shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and such Debt Security registrar duly executed by
the registered Holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
The Company shall not be required to issue, exchange
or register a transfer of (a) any Debt Securities of any series for a period of
15 days next preceding the mailing of a notice of redemption of Debt Securities
of such series and ending at the close of business on the day of the mailing of
a notice of redemption of Debt Securities of such series so selected for
redemption, or (b) any Debt Securities selected, called or being called for
redemption except, in the case of any Debt Security to be redeemed in part, the
portion thereof not so to be redeemed.
All Debt Securities issued in exchange for or upon
registration of transfer of Debt Securities shall be valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered for such exchange or registration
of transfer.
None of the Trustee, any agent of the Trustee, any
Paying Agent or the Company will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 3.07. Mutilated, Destroyed, Lost or Stolen
Debt Securities. In case any temporary or definitive Debt Security shall
become mutilated or be destroyed, lost or stolen, the Company in its discretion
may execute, and upon its request the Trustee shall authenticate and deliver, a
new Debt Security, bearing a number, letter or other distinguishing mark not
contemporaneously Outstanding, in exchange and substitution for the mutilated
Debt Security, or in lieu of and in substitution for the Debt Security so
destroyed, lost or stolen. In every case the applicant for a substituted Debt
Security shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft, of such Debt Security and of the ownership thereof.
In the absence of notice to the Trustee or the
Company that such Debt Security has been acquired by a bona fide purchaser, the
Trustee shall authenticate any such substituted Debt Security and deliver the
same upon any Company Request. Upon the issuance of any substituted Debt
Security, the Company may require the payment of a sum
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sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith. In case any Debt
Security which has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substituted
Debt Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Debt Security) if the applicant for
such payment shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless and, in case
of destruction, loss or theft, evidence satisfactory to the Company and to the
Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
Every substituted Debt Security issued pursuant to
the provisions of this Section 3.07 by virtue of the fact that any Debt
Security is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debt Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Debt Securities duly issued hereunder. All Debt Securities shall be held
and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities and shall preclude (to the extent permitted by
law) any and all other rights or remedies with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
SECTION 3.08. Payment of Interest; Interest Rights
Preserved. Interest which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date, on any Debt Security, shall unless otherwise
provided in such Debt Security be paid to the Person in whose name the Debt
Security (or one or more Predecessor Debt Securities) is registered at the
close of business on the Regular Record Date for such interest.
Unless otherwise stated in the form of Debt Security
of a series, interest on the Debt Securities of any series shall be computed on
the basis of a 360 day year comprised of twelve 30 day months.
Any interest on any Debt Security which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names any
such Debt Securities (or their respective Predecessor
Debt Securities) are registered at the close of
business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Debt Security
and the date of the proposed
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payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefore to be
mailed, first-class postage prepaid, to each Holder
of such Debt Securities, at his address as it appears
in the Debt 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 therefore having been mailed as
aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names such Debt Securities (or
their respective Predecessor Debt Securities) are
registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause
(2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on
which the Debt Securities of that series may be
listed, and upon such notice as may be required by
such exchange, if , after notice given by the Company
to the Trustee of the proposed payment pursuant to
this Clause, such payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section,
each Debt Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
SECTION 3.09. Persons Deemed Owners. The Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Debt Security is registered as the owner of such Debt Security
for the purpose of receiving payment of principal of, premium, if any, and
(subject to Section 3.08) interest on, such Debt Security and for all other
purposes whatsoever whether or not such Debt Security be overdue, and neither
the Company, the Trustee, nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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SECTION 3.10. Cancellation of Debt Securities Paid,
etc. All Debt Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer or delivered in satisfaction in whole or
in part of any sinking fund obligation shall, if surrendered to the Company or
any agent of the Trustee or the Company under this Indenture, be delivered to
the Trustee and promptly cancelled by it, or, if surrendered to the Trustee,
shall be promptly cancelled by it, and no Debt Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of cancelled Debt Securities in
accordance with a Company Order.
SECTION 3.11. Currency and Manner of Payments. (a)
With respect to Debt Securities denominated in Dollars or a Foreign Currency,
the following payment provisions shall apply:
(1) Except as provided in subparagraph (a)(2) or
in paragraph (c) of this Section 3.11, payment of
principal of and premium, if any, on any Debt
Securities will be made at the offices established
pursuant to Section 5.02 by delivery of a check in
the currency in which the Debt Security is
denominated on the payment date against surrender of
such Debt Security, and any interest on any Debt
Security will be paid at such office by mailing a
check in the currency in which the Debt Securities
were issued to the Person entitled thereto at the
address of such Person appearing on the Debt Security
Register.
(2) Payment of the principal of and premiums, if
any, and interest on such Debt Security may also,
subject to applicable laws and regulations, be made
at such other place or places as may be designated by
the Company by any appropriate method.
(b) Not later than the fourth Business Day after
the Record Date for such Interest Payment Date, the Paying Agent will deliver
to the Company a written notice specifying, in the currency in which each
series of the Debt Securities are denominated, the respective aggregate amounts
of principal of and premium, if any, and interest on the Debt Securities to be
made on such payment date, specifying the amounts so payable in respect of the
Debt Securities. The failure of the Paying Agent to deliver such notice shall
not relieve the Company from its obligation to make all payments with respect
to any Debt Security when due.
(c) If the Foreign Currency in which any of the
Debt Securities are denominated ceases to be used both by the government of the
country which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, then with
respect to each date for the payment of Foreign Currency occurring after the
last date on which the Foreign Currency was so used (the "Conversion Date"),
the Dollar shall be the currency of payment for use on each such Interest
Payment Date. The Dollar amount to be paid by the Company to the Trustee and
by
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the Trustee or any paying agent to the Holder of such Debt Securities with
respect to such payment date shall be the Dollar Equivalent of the Foreign
Currency as determined by the Currency Determination Agent as of the Record
Date (the "Valuation Date") in the manner provided in paragraph (d).
(d) The "Dollar Equivalent of the Foreign
Currency" shall be determined by the Currency Determination Agent as of each
Valuation Date and shall be obtained by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Valuation Date.
(e) The "Market Exchange Rate" shall mean, for
any currency, the highest firm bid quotation for U.S. dollars received by the
Currency Determination Agent at approximately 11:00 a.m., New York City time,
on the second Business Day preceding the applicable payment date (or, if no
such rate is quoted on such date, the last date on which such rate was quoted),
from three recognized foreign exchange dealers in the City of New York selected
by the Currency Determination Agent and approved by the Company (one of which
may be the Currency Determination) for the purchase by the quoting dealer, for
settlement on such payment date, of the aggregate amount of such currency
payable on such payment in respect of all Notes denominated in such currency.
All decisions and determinations of the Currency
Determination Agent regarding the Dollar Equivalent of the Foreign Currency and
the Market Exchange Rate shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company and all Holders of the Debt Securities. In the event
that the Foreign Currency ceases to be used both by the government of the
country which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, the
Company, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 15.03 to the Holders) specifying the Conversion Date.
The Trustee shall be fully justified and protected in
relying on and acting upon the information so received by it from the Company
or the Currency Determination Agent and shall not otherwise have any duty or
obligation to determine such information independently.
If the principal of (and premium, if any) and
interest on any Debt Securities is payable in a Foreign Currency and such
Foreign Currency is not available for payment due to the imposition of exchange
controls or other circumstances beyond the control of the Company, then the
Company shall be entitled to satisfy its obligations to Holders under this
Indenture by making such payment in Dollars on the basis of the Market Exchange
Rate for such Foreign Currency on the latest date for which such rate was
established on or before the date on which payment is due. Any payment made
pursuant to
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this Section 3.11 in Dollars where the required payment is in a Foreign
Currency shall not constitute a default under this Indenture.
ARTICLE FOUR.
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS.
SECTION 4.01. Applicability of Article. The Company
may reserve the right to redeem and pay before Stated Maturity all or any part
of the Debt Securities of any series, either by optional redemption, sinking
fund (mandatory or optional) or otherwise, by provision therefor in the form of
Debt Security for such series on such terms as are specified in such form or
the Board Resolution or Officers' Certificate delivered pursuant to Section
3.01 or the indenture supplemental hereto as provided in Section 3.01 with
respect to Debt Securities of such series. Redemption of Debt Securities of
any series shall be made in accordance with the terms of such Debt Securities
and, to the extent that this Article does not conflict with such terms, in
accordance with this Article.
SECTION 4.02. Notice of Redemption; Selection of
Debt Securities. In case the Company shall desire to exercise the right to
redeem all, or, as the case may be, any part of a series of Debt Securities
pursuant to Section 4.01, the Company shall fix a date for redemption and the
Company, or, at the Company's request, the Trustee in the name of and at the
expense of the Company, shall mail a notice of such redemption at least 30 and
not more than 60 days prior to the date fixed for redemption to the Holders of
Debt Securities so to be redeemed as a whole or in part at their last addresses
as the same appear on the Debt Securities Register. Such mailing shall be by
first class mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the Holder of any Debt Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security.
Notice of redemption shall be given in the name of
the Company and shall specify the date fixed for redemption, the redemption
price at which Debt Securities of any series are to be redeemed, the place of
payment (which shall be at the offices or agencies to be maintained by the
Company pursuant to Section 5.02), that payment of the redemption price will be
made upon presentation and surrender of such Debt Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice,that on and after said date interest thereon or on the portions thereof
to be redeemed will cease to accrue, and the Section of this Indenture pursuant
to which Debt Securities will be redeemed. In case less than all Debt
Securities of any series are to be redeemed, the notice of redemption shall
also identify the particular Debt Securities to be redeemed as a whole or in
part and shall state that the redemption is for the sinking fund, if such is
the case. In case any Debt Security is to be redeemed in part only, the notice
of redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for
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redemption, upon surrender of such Debt Security, a new Debt Security or Debt
Securities of such series in aggregate principal amount equal to the unredeemed
portion thereof will be issued without charge to the Holder.
If less than all the Debt Securities of any series
are to be redeemed, the Company shall give the Trustee notice, at least 45 days
(or such shorter period acceptable to the Trustee) in advance of the date fixed
for redemption, as to the aggregate principal amount of Debt Securities to be
redeemed. Debt Securities may be redeemed in part in multiples equal to the
minimum authorized denomination for Debt Securities of such Series or any
multiple thereof. Thereupon the Trustee shall select, in such manner as in its
sole discretion it shall deem appropriate and fair, the Debt Securities or
portions thereof to be redeemed, and shall as promptly as practicable notify
the Company of the Debt Securities or portions thereof so selected. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Debt Securities of any series shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
On or prior to the date fixed for redemption
specified in the notice of redemption given as provided in this Section 4.02,
the Company will deposit with the Trustee or with the paying agent an amount of
money in the currency in which the Debt Securities of such series are payable
sufficient to redeem on the date fixed for redemption all the Debt Securities
so called for redemption at the appropriate redemption price, together with
accrued interest to the date fixed for redemption.
The Trustee shall not mail any notice of redemption
of any series of Debt Securities during the continuation of any default in
payment of interest on any series of Debt Securities when due or of any Event
of Default, except that where notice of redemption with respect to any series
of Debt Securities shall have been mailed prior to the occurrence of such
default or Event of Default, the Trustee shall redeem such Debt Securities
provided funds are deposited with it for such purpose.
SECTION 4.03. Payment of Debt Securities Called for
Redemption. If notice of redemption has been given as herein provided, the
Debt Securities or portions of Debt Securities with respect to which such
notice has been given shall become due and payable on the date and at the place
stated in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Debt Securities or
portions thereof at the redemption price, together with interest accrued to
said date) interest on the Debt Securities or portions of Debt Securities so
called for redemption shall cease to accrue, and such Debt Securities and
portions of Debt Securities shall be deemed not to be Outstanding hereunder and
shall not be entitled to any benefit under this Indenture except to receive
payment of the redemption price, together with accrued interest to the date
fixed for redemption. On presentation and surrender of such Debt Securities at
the place of payment in said notice specified, the said Debt Securities or the
specified portions thereof shall be
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paid and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided,
however, that any installments of interest becoming due on the date fixed for
redemption shall be payable to the Holders of such Debt Securities, or one or
more previous Debt Securities evidencing all or a portion of the same debt as
that evidenced by such particular Debt Securities, registered as such on the
relevant record dates according to their terms and the provisions of Section
3.08.
Upon presentation and surrender of any Debt Security
redeemed in part only, with, if the Company or the Trustee so required, 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 his attorney
duly authorized in writing, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company,
a new Debt Security or Debt Securities of the same series having the same
interest rate and Stated Maturity and bearing interest from the same date, of
any authorized denominations as requested by such Holder, in aggregate
principal amount equal to the unredeemed portion of the Debt Security so
presented and surrendered.
SECTION 4.04. Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Debt Securities shall be excluded
from eligibility for selection for redemption if they are identified by
registration and certificate number in a written statement signed by a
Responsible Officer of the Company and delivered to the Trustee at least 45
days prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Company or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company.
SECTION 4.05. Provisions with Respect to any Sinking
Funds. Unless the form or terms of any series of Debt Securities shall provide
otherwise, in lieu of making all or any part of any mandatory sinking fund
payment with respect to such series of Debt Securities in cash, the Company may
at its option (1) deliver to the Trustee for cancellation any Debt Securities
of such series theretofore acquired by the Company, or (2) receive credit for
any Debt Securities of such series (not previously so credited) acquired by the
Company and theretofore delivered to the Trustee for cancellation, then Debt
Securities so delivered or credited shall be credited at the applicable sinking
fund Redemption Price with respect to the Debt Securities of such series.
On or before the 45th day next preceding each sinking
fund Redemption Date, the Company will deliver to the Trustee a certificate
signed by the Chief Financial Officer, any Vice President, the Treasurer or any
Assistant Treasurer of the Company specifying (i) the portion of the mandatory
sinking fund payment to be satisfied by deposit of cash in the currency in
which the Debt Securities of such series are payable, by delivery of Debt
Securities theretofore purchased or otherwise acquired by the Company (which
Debt Securities shall accompany such certificate) and by credit for Debt
Securities acquired by the Company and theretofore delivered to the Trustee for
cancellation redeemed
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by the Company and stating that the credit to be applied has not theretofore
been so applied or applied in lieu of retiring Funded Debt pursuant to Section
5.06 and (ii) whether the Company intends to exercise its right, if any, to
make an optional sinking fund payment, and, if so, the amount thereof. Such
certificate shall also state that no Event of Default has occurred and is
continuing. Such certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the payment or payments therein referred to,
if any, on or before the next succeeding sinking fund payment date. In case of
the failure of the Company on or before the 45th day next preceding each
sinking fund Redemption Date to deliver such certificate (or to deliver the
Debt Securities specified in this paragraph), the sinking fund payment due on
the next succeeding sinking fund payment date shall be paid entirely in cash
(in the currency described above) and shall be sufficient to redeem the
principal amount of Debt Securities as a mandatory sinking fund payment,
without the option to deliver or credit Debt Securities as provided in the
first paragraph of this Section 4.04 and without the right to make an optional
sinking fund payment as provided herein.
If the sinking fund payment or payments (mandatory or
optional) with respect to any series of Debt Securities made in cash (in the
currency described above) shall exceed the minimum authorized denomination set
forth in an Officers' Certificate pursuant to Section 3.01 or the equivalent in
the currency in which the Debt Securities of such series are payable (or a
lesser sum if the Company shall so request), unless otherwise provided by the
terms of such series of Debt Securities, said cash shall be applied by the
Trustee on the sinking fund Redemption Date with respect to Debt Securities of
such series at the applicable sinking fund Redemption Price with respect to
Debt Securities of such series, together with accrued interest, if any, to the
date fixed for redemption, with the effect provided in Section 4.03. The
Trustee shall select, in the manner provided in Section 4.02, for redemption on
such sinking fund Redemption Date a sufficient principal amount of Debt
Securities of such series to utilize said cash and shall thereupon cause notice
of redemption of the Debt Securities of such series for the sinking fund to be
given in the manner provided in Section 4.02 (and with the effect provided in
Section 4.03) for the redemption of Debt Securities in part at the option of
the Company. Debt Securities of any series which are identified by
registration and certificate number in an Officer's Certificate at least 45
days prior to the sinking fund Redemption Date as being beneficially owned by,
and not pledged or hypothecated by, the Company or an entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be excluded from Debt Securities of such series
eligible for selection for redemption. Any sinking fund moneys not so applied
or allocated by the Trustee to the redemption of Debt Securities of such series
shall be added to the next cash sinking fund payment with respect to Debt
Securities of such series received by the Trustee and, together with such
payment, shall be applied in accordance with the provisions of this Section
4.05. Any and all sinking fund moneys with respect to Debt Securities of any
series held by the Trustee at the maturity of Debt Securities of such series,
and not held for the payment or redemption of particular Debt Securities of
such series, shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Debt Securities of such series at maturity.
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The Trustee shall not convert any currency in which
the Debt Securities of such series are payable for the purposes of such sinking
fund application unless a Company Request is made, and any such conversion
agreed to by the Trustee in response to such request shall be for the account
and at the expense of the Company and shall not affect the Company's obligation
to pay the Holders in the currency to which such Holder is entitled.
On or before each sinking fund Redemption Date
provided with respect to Debt Securities of any series, the Company shall pay
to the Trustee in cash in the currency described above a sum equal to all
accrued interest, if any, to the date fixed for redemption on Debt Securities
to be redeemed on such sinking fund Redemption Date pursuant to this Section
4.05.
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of Principal, Premium and
Interest. The Company will duly and punctually pay or cause to be paid (in the
currency in which the Debt Securities of such series are payable) the principal
of and premium, if any, and interest on each of the Debt Securities at the
place (subject to Section 3.03), at the respective times and in the manner
provided in each series of Debt Securities and in this Indenture.
SECTION 5.02. Offices for Notices and Payments, etc.
(a) So long as the Debt Securities of any series remain Outstanding, the
Company will maintain at the Place of Payment, an office or agency where the
Debt Securities may be presented for payment, an office or agency where the
Debt Securities may be presented for registration of transfer and for exchange
as in this Indenture provided, and an office or agency where notices and
demands to or upon the Company in respect of the Debt Securities or of this
Indenture may be served and shall give the Trustee written notice thereof and
any changes in the location thereof. In case the Company shall at any time
fail to maintain any such office or agency, or shall fail to give notice to the
Trustee of any change in the location thereof, presentation and demand may be
made and notice may be served in respect of the Debt Securities or of this
Indenture at said office of the Trustee.
(b) In addition to the office or agency
maintained by the Company pursuant to Section 5.02(a), the Company may from
time to time designate one or more other offices or agencies where the Debt
Securities may be presented for payment and presented for registration of
transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designations, as the Company may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain such office and agency at the Place of Payment, for the purposes
abovementioned. The Company will give to the Trustee prompt written notice of
(i) any such designation or rescission thereof,
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and (ii) the location of any such office or agency outside the Place of Payment
and of any change of location thereof.
SECTION 5.03. Appointments to Fill Vacancies in
Trustee's Office. The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in Section 8.10,
a Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 5.04. Provisions as to Paying Agent. (a)
(1) Whenever the Company shall have one or more Paying Agents for any series
of Debt Securities other than the Trustee, it will, on or before each due date
of the principal of (and premium, if any) or interest on any Debt Securities of
such series, deposit with a Paying Agent a sum sufficient to pay such amount
becoming due, such sum to be held as provided by the Trust Indenture Act of
1939, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
(2) The Company will cause each Paying Agent 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) comply with the provisions of
the Trust Indenture Act of 1939 applicable to it as a Paying Agent and (ii)
during the continuance of any default by the Company (or any other obligor upon
any series of Debt Securities) in the making of any payment in respect of the
Debt Securities of such series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent as
such.
(b) If the Company shall act as its own paying
agent, it will, on or prior to each due date of the principal of and premium,
if any, or interest on Debt Securities of any series, set aside, segregate and
hold in trust for the benefit of the Holders of such Debt Securities a sum
sufficient to pay such principal and premium, if any, or interest so becoming
due and will notify the Trustee of any failure to take such action and of any
failure by the Company (or by any other obligor on such series of Debt
Securities) to make any payment of the principal of and premium, if any, or
interest on the Debt Securities when the same shall become due and payable.
(c) Anything in this Section 5.04 to the
contrary notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture with respect to any or
all series of Debt Securities then Outstanding, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the Company, or any
paying agent hereunder, as required by this Section 5.04, such sums to be held
by the Trustee upon the trusts herein contained.
(d) Anything in this Section 5.04 to the
contrary notwithstanding, the agreement to hold sums in trust provided in this
Section 5.04 is subject to Section 13.04.
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SECTION 5.05. Limitation on Secured Debt.
(a) So long as the Debt Securities shall remain
Outstanding, the Company will not at any time create, assume or guarantee, and
will not cause, suffer or permit a Restricted Subsidiary to create, assume or
guarantee any Secured Debt without making effective provision (and the Company
covenants that in such case it will make or cause to be made effective
provision) whereby the Debt Securities then Outstanding subject to applicable
priorities of payment shall be secured by such Security Interest equally and
ratably with any and all other obligations and indebtedness which shall be so
secured; provided, however, that the foregoing covenants shall not be
applicable to the following:
(1) (a) any Security Interest on any property
hereafter acquired or constructed by the Company or a
Restricted Subsidiary to secure or provide for the
payment of all or any part of the purchase price or
construction cost of such property, including, but
not limited to, any indebtedness incurred by the
Company or a Restricted Subsidiary prior to, at the
time of, or within 180 days after the later of the
acquisition, the completion of construction
(including any improvements on an existing property)
or the commencement of commercial operation of such
property, which indebtedness is incurred for the
purpose of financing all or any part of the purchase
price thereof or construction or improvements
thereon; or (b) the acquisition of property subject
to any Security Interest upon such property existing
at the time of acquisition thereof, whether or not
assumed by the Company or such Restricted Subsidiary;
or (c) any Security Interest existing on the property
or on the outstanding shares of capital stock or
indebtedness of a corporation at the time such
corporation shall become a Restricted Subsidiary; or
(d) a Security Interest on property or shares of
capital stock or indebtedness of a corporation
existing at the time such corporation is merged into
or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation or
firm as an entirety or substantially as an entirety
to the Company or a Restricted Subsidiary, provided,
however, that no such Security Interest shall extend
to any other Principal Property of the Company or
such Restricted Subsidiary prior to such acquisition
or to the other Principal Property thereafter
acquired other than additions to such acquired
property;
(2) Security Interests in property of the Company
or a Restricted Subsidiary in favor of the United
States of America or any State thereof, or any
department, agency or instrumentality or political
subdivision of the United States of America or any
State thereof, or in favor of any other country, or
any department, agency or instrumentality or
political subdivision thereof (including, without
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limitation, Security Interests to secure indebtedness
of the pollution control or industrial revenue bond
type), in order to permit the Company or a Restricted
Subsidiary to perform any contract or subcontract
made by it with or at the request of any of the
foregoing, or to secure partial, progress, advance or
other payments pursuant to any contract or statute or
to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or
the cost of constructing or improving the property
subject to such Security Interests;
(3) Any Security Interest on any property or
assets of any Restricted Subsidiary to secure
indebtedness owing by it to the Company or to a
Restricted Subsidiary;
(4) 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;
(5) 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;
(6) Security Interests for taxes, assessments or
governmental charges or levies not yet delinquent, or
the Security Interests for taxes, assessments or
government charges or levies already delinquent but
the validity of which is being contested in good
faith;
(7) 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;
(8) Landlords' liens on fixtures located on
premises leased by the Company or a Restricted
Subsidiary in the ordinary course of business; or
(9) Any extension, renewal or replacement (or
successive extensions, renewals or replacements) in
whole or in part of any Security Interest permitted
by subsection (a) of this Section 5.05.
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(b) Notwithstanding the provisions of subsection
(a) of this Section 5.05, the Company and any one or more Restricted
Subsidiaries may without securing the Debt Securities issue, assume or
guarantee Secured Debt which would otherwise be subject to the foregoing
restrictions in an aggregate amount which, together with all other Secured Debt
of the Company and its Restricted Subsidiaries which would otherwise be subject
to the foregoing restrictions (not including Secured Debt permitted to be
secured under subsection (a) above) and the aggregate value of the Sale and
Leaseback Transactions (as defined in Section 5.06) in existence at such time
(not including Sale and Leaseback Transactions the proceeds of which have been
or will be applied in accordance with Section 5.06(b)), does not exceed 10% of
Consolidated Net Tangible Assets, determined as of a date not more than 90 days
prior thereto.
(c) In the event that the Company shall
hereafter secure the Debt Securities of each series equally and ratably with
any other obligation or indebtedness pursuant to the provisions of this Section
5.05, the Trustee is hereby authorized to enter into an indenture or agreement
supplemental hereto and to take such action, if any, as it may deem advisable
to enable it to enforce effectively the rights of the Holders of the Securities
so secured, equally and ratably with such other obligation or indebtedness.
SECTION 5.06. Sale and Leaseback Transactions. So
long as the Debt Securities shall remain Outstanding, the Company will not, and
will not permit any Restricted Subsidiary to, sell or transfer (except to the
Company or one or more Restricted Subsidiaries, or both) any Principal Property
owned by it and in full operation for more than 180 days with the intention of
taking back a lease on such property (except a lease for a term of no more than
three years entered into with the intent that the use by the Company or such
Restricted Subsidiary of such property will be discontinued on or before the
expiration of such term) (herein referred to as a "Sale and Leaseback
Transaction") unless either (a) the Company or such Restricted Subsidiary would
be entitled, pursuant to the provisions of Section 5.05 hereof, to incur
Secured Debt equal in amount to the amount realized or to be realized upon such
sale or transfer secured by a Security Interest on the property to be leased
without equally and ratably securing the Debt Securities, or (b) the Company or
a Restricted Subsidiary shall apply an amount equal to the value of the
property so leased to the retirement (other than any mandatory retirement),
within 120 days of the effective date of any such arrangement, of Funded Debt
as shown on the most recent consolidated balance sheet of the Company and
which, in the case of such Funded Debt of the Company, is not subordinate and
junior in right of payment to the prior payment of the Debt Securities;
provided, however, that in lieu of applying all or any part of such amount to
such retirement, the Company may at its option (x) deliver to the Trustee Debt
Securities theretofore purchased or otherwise acquired by the Company, or (y)
receive credit for the Debt Securities theretofore redeemed at its option. If
the Company shall so deliver the Debt Securities to the Trustee (or receive
credit for Debt Securities so delivered), the amount which the Company shall be
required to apply to the retirement of indebtedness pursuant to this Section
5.06 shall be reduced by an amount equal to the aggregate principal amount of
such Debt Securities.
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The term "value" shall mean, with respect to a Sale
and Leaseback Transaction, as of any particular time, the amount equal to the
greater of (i) the Capitalized Rent with respect thereto, or (ii) the fair
value of such property at the time of entering into such Sale and Leaseback
Transaction as determined by the Board of Directors.
SECTION 5.07. Restrictions on Transfer of Principal
Property to Unrestricted Subsidiaries. So long as the Debt Securities of any
series remain Outstanding, the Company will not itself, and will not cause,
suffer or permit any Restricted Subsidiary to, transfer (whether by merger,
consolidation or otherwise) any Principal Property to any Unrestricted
Subsidiary, unless it shall apply, within one year after the effective date of
such transaction, or shall have committed within one year after such effective
date to apply, an amount equal to the fair value of such Principal Property 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 Property or Properties or a part thereof,
(b) the redemption of Debt Securities of any series in accordance with the
provisions of Article Four and at the redemption price referred to in Section
4.01 applicable at the time of such redemption, (c) the repayment of Funded
Debt of the Company or of any Restricted Subsidiary (other than any Funded Debt
owed to any Restricted Subsidiary), or in part to such acquisition,
construction, development or improvement and in part to such redemption and/or
repayment; provided that, in lieu of applying an amount equivalent to all or
any part of such fair value to such redemption, the Company may, within one
year after such transfer, deliver to the Trustee Debt Securities (other than
Debt Securities made the basis of reduction in a mandatory sinking fund payment
pursuant to Section 4.05) for cancellation and thereby reduce the amount to be
applied to the redemption of the Debt Securities of that series pursuant to
clause (b) above by an amount equivalent to the aggregate principal amount of
the Debt Securities so delivered. Redemption of Debt Securities pursuant to
this Section 5.07 shall not be used as credits against mandatory sinking fund
payments.
SECTION 5.08. Certificate to Trustee. So long as
the Debt Securities of any series remain Outstanding, the Company will deliver
to the Trustee on or before 120 days after the end of each fiscal year an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as officers of the Company, they would normally have
knowledge of any default by the Company in the performance or fulfillment or
observance of any covenants or agreements contained herein during the preceding
fiscal year, stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers have knowledge
and the nature thereof. The Officers' Certificate need not comply with Section
15.05.
SECTION 5.09. Waivers of Covenants. Anything in
this Indenture to the contrary notwithstanding, the Company may fail or omit,
in respect of any series of Debt Securities, and in any particular instance, to
comply with a covenant, agreement or condition contained in Sections 5.02 and
5.04 (other than in 5.04(a)(1) and (2)) to 5.08, inclusive, if
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the Company shall have obtained and filed with the Trustee before or after the
time for such compliance the consent in writing of the Holders of more than 50%
in aggregate principal amount of the Debt Securities of the series affected by
such waiver at the time Outstanding, either waiving such compliance in such
instance or generally waiving compliance with such covenant or condition, but
no such waiver shall extend to or affect any obligation not expressly waived
nor impair any right consequent thereon and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and
effect.
ARTICLE SIX.
HOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
SECTION 6.01. Holders' Lists. The Company covenants
and agrees that it will furnish or cause to be furnished to the Trustee, not
more than 15 days after each Regular Record Date with respect to the Debt
Securities of any series, and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of Debt Securities of such series as of a date not
more than 15 days prior to the time such information is furnished; provided,
however, that no such list with respect to any particular series of Debt
Securities need be furnished at any such time if the Trustee is in possession
thereof by reason of its acting as the Debt Security registrar for such series
designated under Section 3.06 or otherwise.
SECTION 6.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
Debt Securities contained in the most recent list furnished to it as provided
in Section 6.01 or received by the Trustee in the capacity of the Debt Security
registrar (if so acting) under Section 3.06. The Trustee may destroy any list
furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with
other Holders with respect to their rights under this Indenture or under the
Debt Securities of any series or of all Debt Securities, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act of 1939.
(c) Every Holder of Debt Securities, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act of 1939.
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SECTION 6.03. Reports by the Company. The Company
agrees to file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act of 1939 at the times and in
the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall
be filed with the Trustee within 15 days after the same is so required to be
filed with the Commission.
SECTION 6.04. Reports by the Trustee. (a) The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act of 1939 at the times and in the manner provided pursuant thereto. The
interval between transmissions of reports to be transmitted at intervals shall
be twelve months or such shorter time required by the Trust Indenture Act of
1939. If the Trust Indenture Act of 1939 does not specify the date on which a
report is due, the such report shall be due on May 15 of each year following
the first issuance of Debt Securities.
(b) A copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which Debt Securities of any series are listed, with the
Commission and with the Company. The Company will notify the Trustee when the
Debt Securities of any series are listed on any stock exchange.
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default. Event of Default,
with respect to any series of Debt Securities, wherever used herein, means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is
either inapplicable to a particular series or it is specifically deleted or
modified in the supplemental indenture under which such series of Debt
Securities is issued or in the form of Debt Security for such series:
(a) default in the payment of any installment
of interest upon any Debt Security of such series as
and when the same shall become due and payable, and
continuance of such default for a period of 30 days;
or
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(b) default in the payment of the principal of
and premium, if any, on any Debt Security of such
series as and when the same shall become due and
payable either at maturity, upon redemption, by
declaration of acceleration or otherwise; or
(c) default in the payment or satisfaction of
any sinking fund payment or analogous obligation, if
any, with respect to the Debt Securities of such
series as and when the same shall become due and
payable by the terms of the Debt Securities of such
series; or
(d) failure on the part of the Company duly to
observe or perform any of the covenants, warrants or
agreements on the part of the Company in respect of
the Debt Securities of such series in this Indenture
(other than a covenant, warranty or agreement a
default in whose performance or whose breach is
elsewhere in this Section specifically dealt with)
continued for a period of 60 days after the date on
which written notice of such failure, specifying such
failure and requiring the same to be remedied, shall
have been given to the Company by the Trustee, by
registered mail, or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal
amount of the Outstanding Debt Securities of such
series; or
(e) an event of default with respect to any
other series of Debt Securities issued or hereafter
issued pursuant to this Indenture or if default shall
be made (and shall not have been cured or waived) in
the payment of principal of or interest on any other
obligation for borrowed money of the Company beyond
any period of grace with respect thereto if (i) the
aggregate principal amount (or, in the case of
Original Issue Discount Debt Securities, such portion
of the principal amount as may be specified in the
terms of such indebtedness as due and payable upon
acceleration) of any such obligation in respect of
which principal or interest is and remains in default
is in excess of $25,000,000 and (ii) the default in
such payment is not being contested by the Company in
good faith and by appropriate proceedings; provided,
however, that subject to the provisions of Section
7.08 and Section 8.01 the Trustee shall not be
charged with knowledge of any such default unless
written notice thereof shall have been given to the
Trustee by the Company, by the holders or an agent of
the holders of any such indebtedness, by the trustee
then acting under any indenture or other instrument
under which such default shall have occurred, or by
the Holders of not less than 25% in aggregate
principal amount of such series of Debt Securities at
the time Outstanding; or
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(f) a decree or order by a court having
jurisdiction in the premises shall have been entered
adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking
reorganization of the Company under the Federal
bankruptcy laws or any other similar applicable
Federal or state law, and such decree or order shall
have continued undischarged and unstayed for a period
of 60 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee or
other similar official in bankruptcy or insolvency of
the Company or of all or substantially all of its
property, or for the winding up or liquidation of its
affairs, shall have been entered, and such decree or
order shall have continued undischarged and unstayed
for a period of 60 days; or
(g) the Company shall institute proceedings to
be adjudicated a voluntary bankrupt, or shall consent
to the filing of a bankruptcy proceeding against it,
or shall file a petition or answer or consent seeking
an arrangement or a reorganization under the Federal
bankruptcy laws or any other similar applicable
Federal or state law, or shall consent to the filing
of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or
assignee or other similar official in bankruptcy or
insolvency of it or of all or substantially all of
its property, or shall make an assignment for the
benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become
due; or
(h) any other Event of Default provided in the
supplemental indenture under which such series of
Debt Securities is issued or in the form of Debt
Security for such series;
then and in each and every such case, so long as such Event of Default with
respect to any series of Debt Securities for which there are Debt Securities
Outstanding occurs and is continuing and shall not have been remedied or waived
to the extent permitted by the terms of this Indenture, unless the principal of
all of the Debt Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of such series, by notice
in writing to the Company (and to the Trustee if given by Holders), may declare
the principal (or, if the Debt Securities of that series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Debt Securities of such
series and the interest accrued thereon to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Debt Securities of such
series contained to the contrary notwithstanding. This provision, however, is
subject to the condition that if, at any time after the principal of the Debt
Securities of such series shall have been so
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declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay in
the currency in which the Debt Securities of such series are payable all
matured installments of interest upon all of the Debt Securities and the
principal of and premium, if any, on any and all Debt Securities of such series
which shall have become due otherwise than by such declaration (with interest
on overdue installments of interest to the extent that payment of such interest
is enforceable under applicable law and on such principal and premium, if any,
at the rate borne by the Debt Securities of such series or as otherwise
provided in the form of Debt Security for such series, to the date of such
payment or deposit) and the expenses of the Trustee (subject to Section 8.06),
and any and all defaults under this Indenture, other than the nonpayment of
principal of and accrued interest on Debt Securities of such series which
shall have become due by such declaration, shall have been cured or shall have
been waived in accordance with Section 7.07 or provision deemed by the Trustee
to be adequate shall have been made therefor - then and in every such case the
Holders of at least a majority in aggregate principal amount of the Debt
Securities of such series then Outstanding, by written notice to the Company
and to the Trustee, may rescind and annul such declaration and its
consequences; but no such rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right consequent thereon.
In case the Trustee or any Holders shall have
proceeded to enforce any right under this Indenture and such proceedings shall
have been discontinued or abandoned because of such rescission and annulment or
for any other reason or shall have been determined adversely to the Trustee,
then and in every such case the Company, the Trustee and the Holders shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the Trustee and the Holders shall
continue as though no such proceeding had been taken.
SECTION 7.02. Payment of Debt Securities Upon
Default; Suit Therefor. The Company covenants that (a) in case default shall
be made in the payment of any instalment of interest upon any Debt Security of
any series as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be
made in the payment of the principal of and premium, if any, on any Debt
Security of any series as and when the same shall have become due and payable,
whether at maturity of the Debt Security or upon redemption or by declaration
or otherwise or (c) in case default shall be made in the making or satisfaction
of any sinking fund payment or analogous obligation with respect to the Debt
Securities of any series when the same becomes due by the terms of the Debt
Securities of any series--then, upon demand of the Trustee, the Company will
pay to the Trustee, for the benefit of the Holders (or Holders of Debt
Securities of any such series in the case of clause (c) above), the whole
amount that then shall have become due and payable on any such Debt Security
(or Debt Securities of any such series in the case of clause (3) above) for
principal and premium, if any, or interest, or both, as the case may be, with
interest upon the overdue principal and premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law)
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upon the overdue installments of interest at the rate borne by the Debt
Securities of such series or as otherwise provided in the form of Debt Security
of such series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred and advances made by the Trustee, except
compensation or advances arising, or expenses or liabilities incurred, as a
result of the Trustee's negligence or bad faith.
Until such demand is made by the Trustee, the Company
may pay the principal of and premium, if any, and interest on the Debt
Securities of any series to the Persons entitled thereto, whether or not the
principal of and premium, if any, and interest on the Debt Securities of such
series are overdue.
In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or any other obligor on such Debt Securities and collect, in the manner
provided by law out of the property of the Company or any other obligor on such
Debt Securities wherever situated, the moneys adjudged or decreed to be
payable. If any Event of Default with respect to any series of Debt Securities
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other obligor on the
Debt Securities of any series under the Federal bankruptcy laws or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the property of the Company or such other obligor, or in the case of any other
similar judicial proceedings relative to the Company or other obligor upon the
Debt Securities of any series, or to the creditors or property of the Company
or such other obligor, the Trustee, irrespective of whether the principal of
the Debt Securities of such series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section
7.02, shall be entitled and empowered by intervention in such proceedings or
otherwise, (a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Debt Securities of
such series, and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee and of the Holders of the Debt Securities of
such series allowed in such judicial proceedings relative to the Company or any
other obligor on such Debt Securities, its or their creditors,
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or its or their property, (b) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of any Debt Securities of any
series in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and (c) to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Holders of the Debt Securities of such
series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay
to the Trustee such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred and advances made by the Trustee except
compensation or advances arising, or expenses or liabilities incurred, as a
result of the Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept, or adopt on behalf of any
Holder any plan or reorganization, arrangement, adjustment or composition
affecting the Debt Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder (except, as
aforesaid, for the election of a trustee in bankruptcy or other Person
performing similar functions) in any such proceeding.
All rights of action and of asserting claims under
this Indenture, or under any of the Debt Securities of any series, may be
enforced by the Trustee without the possession of any of such Debt Securities,
or the production thereof on any trial or other proceeding relative thereto,
and any such suit or proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall
be for the ratable benefit of the Holders of the Debt Securities of such series
in respect of which such judgment has been recovered.
In any proceedings brought by the Trustee (and also
any proceedings involving the interpretation of any provision of this Indenture
to which the Trustee shall be a party), the Trustee shall be held to represent
all the Holders of the Debt Securities in respect to which such action was
taken, and it shall not be necessary to make any Holders of such Debt
Securities parties to any such proceedings.
SECTION 7.03. Application of Moneys Collected by
Trustee. Any moneys collected by the Trustee pursuant to Section 7.02 shall be
applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the Debt Securities of
such series, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of
collection and reasonable compensation to the
Trustee, its agents, attorneys and
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counsel, and of all other expenses and liabilities
incurred, and all advances made, by the Trustee
except compensation or advances arising, or expenses
or liabilities incurred, as a result of its
negligence or bad faith, and any other amounts owing
the Trustee under Section 8.06;
SECOND: In case the principal of the Debt
Securities of such series shall not have become due
and be unpaid, to the payment of interest on such
Debt Securities, in the order of the maturity of the
installments of such interest, with interest (to the
extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at
the rate borne by such Debt Securities, such payments
to be made ratable to the Persons entitled thereto;
THIRD: In case the principal of the Debt
Securities of such series shall have become due, by
declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon such Debt
Securities for principal and premium, if any, and
interest, with interest on the overdue principal and
premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon
overdue installments of interest at the rate borne by
such Debt Securities; and in case such moneys shall
be insufficient to pay in full the whole amounts so
due and unpaid upon such Debt Securities, then, to
the payment of such principal and premium, if any,
and interest without preference or priority of
principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of
any instalment of interest over any other instalment
of interest, or of any Debt Security of such series
over any other such Debt Security, ratably to the
aggregate of such principal and premium, if any, and
accrued and unpaid interest;
FOURTH: To the payment of any surplus then
remaining to the Company, its successors or assigns,
or to whomsoever may be lawfully entitled to receive
the same.
SECTION 7.04. Proceedings by Holders. No Holder of
any Debt Security of any series shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law or in bankruptcy or otherwise upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless such Holder previously shall have
given to the Trustee written notice of default and of the continuance thereof,
as hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Debt Securities of such series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
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costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding (and no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 7.07), it being understood
and intended, and being expressly covenanted by the taker and Holder of every
Debt Security of every series with every other taker and Holder and the
Trustee, that no one or more Holders of Debt Securities shall have any right in
any manner whatever by virtue of or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of
such Debt Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Debt Securities.
SECTION 7.05. Proceedings by Trustee. In case of an
Event of Default hereunder the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 7.06. Remedies Cumulative and Continuing.
All powers and remedies given by this Article Seven to the Trustee or to the
Holders shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the Holders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Holder to exercise
any right or power accruing upon any default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 7.04, every power and remedy given by this Article Seven
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Holders.
SECTION 7.07. Direction of Proceedings and Waiver of
Defaults by Majority of Holders. The Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of any series shall have
the right to direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities by this Indenture;
provided, however, that (subject to the provisions of Section 8.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee
shall determine upon advice of counsel that the action or proceeding so
directed may not lawfully be taken or would be materially and unjustly
prejudicial to the rights of Holders not joining in such
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direction or if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees
and/or Responsible Officers shall determine that the action or proceeding so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forebearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Debt Securities of all series not joining in the giving of said
direction, it being understood that (subject to Section 8.01) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are duly
prejudicial to such Holders. The Trustee may take any other action deemed
proper by the Trustee not inconsistent with such direction. The Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of
any series may on behalf of the Holders of all the Debt Securities of such
series waive any past default or Event of Default hereunder and its
consequences except a default in the payment of principal of or premium, if
any, or interest on such Debt Securities, or a default in the making of any
sinking fund payment with respect to such Debt Securities. Upon any such
waiver the Company, the Trustee and the Holders of such Debt Securities shall
be restored to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event
of Default shall have been waived as permitted by this Section 7.07, said
default or Event of Default shall for all purposes of the Debt Securities and
this Indenture be deemed to have been cured and to be not continuing.
This Section 7.07 shall be in lieu of Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act of 1939 and such
Sections 316(a)(1)(A) and Section 316(a)(1)(B) are hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act of 1939.
SECTION 7.08. Notice of Defaults. The Trustee shall
give the Holders notice of any default hereunder as and to the extent provided
by the Trust Indenture Act of 1939; provided, however, that in the case of any
default of the character specified in Section 7.07(d), no such notice to
Holders shall be given until at least 60 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.
SECTION 7.09. Undertaking to Pay Costs. In any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
a court may require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act
of 1939; provided that neither this Section nor the Trust Indenture Act of 1939
shall be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company, and any
provision of the Trust Indenture Act of 1939 to such effect is hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture Act of 1939.
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SECTION 7.10. Unconditional Right of Holders to
Receive Principal, Premium and Interest. Notwithstanding any other provision
in this Indenture, the Holder of any Debt Security shall have the rights, which
are absolute and unconditional, to receive payment of the principal of,
premium, if any, and (subject to Section 3.08) interest on such Debt Security
on the respective Stated Maturities expressed in such Debt Security (or in the
case of redemption or repayment, on the date for redemption or repayment, as
the case may be) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties and Responsibilities of
Trustee. The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act of 1939. Notwithstanding the foregoing, no implied
covenants or obligations, except as provided by the Trust Indenture Act of
1939, shall be read into this Indenture against the Trustee, and 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.
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.
SECTION 8.02. Reliance on Documents, Opinions, etc.
Subject to the provisions of Section 8.01,
(a) the Trustee may rely and shall be protected
in acting or refraining from acting upon any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
bond, debenture, note or other paper document
believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand of
the Company mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless
otherwise evidence in respect thereof be herein
specifically prescribed); and any resolution of the
Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel
shall be full and complete
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authorization and protection in respect of any action
taken or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any
action taken or omitted by it in good faith and
believed by it to be authorized or within the
discretion or rights or powers conferred upon it by
this Indenture;
(f) prior to the occurrence of an Event of
Default with respect to the Debt Securities of any
series and after the curing or waiving of all Events
of Default with respect to such Debt Securities, the
Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond,
debenture, note, or other paper or document, unless
requested in writing to do so by the Holders of not
less than a majority in principal amount of such Debt
Securities then Outstanding; provided, however, that
the reasonable expenses of every such investigation
shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand;
and provided, further, that if the payment within a
reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a
condition to so proceeding;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys,
and the Trustee shall not be liable or responsible
for any misconduct, bad faith or negligence on the
part of any agent or attorney appointed with due care
by it hereunder; and
(h) the Trustee shall not be deemed to have
knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee has actual
knowledge thereof or Holders of greater than 50% of
the
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outstanding principal amount of Debt Securities of a
ny series shall have notified the Trustee thereof.
SECTION 8.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Debt Securities (except in the
Trustee's certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series. The
Trustee represents that it is duly authorized to execute and deliver this
Indenture and perform its obligations hereunder. Neither the Trustee nor the
Authenticating Agent shall be accountable for the use or application by the
Company or any Debt Securities or the proceeds of any Debt Securities
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
SECTION 8.04. Trustee and Agents May Own Debt
Securities. The Trustee, any paying agent, or any agent of the Trustee or the
Company under this Indenture, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities of any series with the same
rights it would have if it were not Trustee or such agent and, subject to
Sections 8.08 and 8.13, if operative, may otherwise deal with the Company and
receive, collect, hold, and retain collections from the Company with the same
rights it would have if it were not the Trustee or such agent.
SECTION 8.05. Moneys to be Held in Trust. Subject
to the provisions of Section 13.04, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by law. Neither the Trustee nor any paying agent shall be
under any liability for interest on any moneys received by it hereunder except
such as it may agree with the Company to pay thereon. So long as no Event of
Default with respect to the Debt Securities of any series shall have occurred
and be continuing, all interest allowed on any such moneys shall be paid from
time to time upon the written order of the Company, signed by its President,
its Chief Financial Officer, any Vice President, its Treasurer or an Assistant
Treasurer.
SECTION 8.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust), and the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and all persons not regularly in its employ and any amounts paid by
the Trustee to any Authenticating Agent pursuant to Section 8.14) except any
such expense, disbursement or advance as may arise from its negligence or bad
faith. The Company also covenants to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense
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incurred without negligence or bad faith on the part of the Trustee and arising
out of or in connection with the acceptance or administration of this trust, or
the performance of its duties hereunder, including the current payment of all
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section 8.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debt Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Debt Securities.
SECTION 8.07. Officers' Certificate as Evidence.
Subject to the provisions of Section 8.01, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting
any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such Certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. If
the Trustee has or shall acquire any conflicting interest within the meaning of
the Trust Indenture Act of 1939, the Trustee shall either eliminate such
conflicting interest or resign in the manner provided by, and subject to the
provisions of, the Trust Indenture Act of 1939 and this Indenture.
SECTION 8.09. Eligibility of Trustee. There shall
at all times be a Trustee with respect to each series of Debt Securities
hereunder which shall be a corporation organized and doing business under the
laws of the United States or any state or territory thereof or of the District
of Columbia authorized under such laws to exercise corporate trust power's,
having a combined capital and surplus of at least $5,000,000, subject to
supervision or examination by Federal, state, territorial, or District of
Columbia authority and having its principal office and place of business in
Wilmington, Delaware, if there be such a corporation having its principal
office and place of business in said City and willing to act as Trustee
hereunder. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section 8.09, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee with respect to any
series of Debt Securities shall cease to be eligible in accordance with the
provisions of this Section 8.09, such Trustee shall resign immediately in the
manner and with the effect specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign with respect to any series of Debt
Securities by giving written notice
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by first class mail of such resignation to the Company and to the Holders of
such series of Debt Securities at their addresses as they shall appear on the
Debt Security Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to such series by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee with respect to
such series shall have been so appointed and have accepted appointment within
60 days after the mailing of such notice of resignation to the Holders, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Holder of such series of Debt
Securities who has been a bona fide Holder of a Debt Security or Debt
Securities of such series for at least six months may, subject to the
provisions of Section 7.09, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee
with respect to such series. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint such successor trustee.
(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the
provisions of subsection (a) of Section 8.08 after
written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt
Security or Debt Securities of such series for at
least six months, unless the Trustee's duty to resign
is stayed in accordance with the provisions of
Section 310(b) of the Trust Indenture Act of 1939, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.09 and
shall fail to resign after written request therefor
by the Company or by any such Holder of a note of
such series, or
(3) the Trustee shall become incapable of acting
with respect to any series of Debt Securities, or
shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee with respect to such
series and appoint a successor trustee for such series by written instrument,
in duplicate, executed on instruction of the President, The Chief Financial
Officer or the Treasurer of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 7.09, any Holder who has been a bona fide
Holder of a Debt Security or Debt Securities of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of
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competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove such Trustee
and appoint such successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series may at any time remove
the Trustee with respect to such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Company the evidence
provided for in Section 9.01 of the action in that regard taken by the Holders,
and nominate a successor Trustee which shall be deemed appointed as successor
Trustee unless within ten days after such nomination the Company objects
thereto, in which case the Trustee so removed or any Holder of a Debt Security
or Debt Securities of such series, upon the terms and conditions and otherwise
as in subsection (a) of this Section 8.10 provided, may petition any court of
competent jurisdiction for an appointment of a successor Trustee with respect
to such series.
(d) Any resignation or removal of the Trustee with
respect to all or any series of Debt Securities and any appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.10 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 8.11.
SECTION 8.11. Acceptance by Successor Trustee. Any
successor Trustee appointed as provided in Section 8.10 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee shall become effective with respect to
all or any series as to which it is resigning as Trustee, and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder
with respect to all or any such series, with like effect as if originally named
as Trustee herein with respect to all or any such series; nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 8.06, execute and deliver an instrument transferring to
such successor Trustee all the rights and powers of the Trustee with respect to
all or any such series so ceasing to act. Upon request of any such successor
Trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain
a lien upon all property or funds held or collected by such Trustee with
respect to all or any series as to which it is resigning as Trustee, to secure
any amounts and shall be entitled to any indemnities then due it pursuant to
the provisions of Section 8.06.
No successor Trustee shall accept appointment as
provided in this Section 8.11 unless at the time of such acceptance such
successor Trustee shall be qualified under the provisions of Section 8.08 and
eligible under the provisions of Section 8.09.
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Upon acceptance of appointment by a successor Trustee
with respect to all or any series of Debt Securities as provided in this
Section 8.11, the Company shall mail notice of the succession of such Trustee
hereunder to the Holders of Debt Securities of such series at their addresses
as they shall appear on the Debt Security Register. If the Company fails to
mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed
at the expense of the Company.
In case the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Debt Securities of any applicable series shall execute and
deliver an indenture supplemental hereto which shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities
of any series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.
SECTION 8.12. Succession by Merger, etc. Subject to
Sections 8.08 and 8.09, any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
In case at the time any successor to the Trustee
shall succeed to the trusts created by this Indenture any of the Debt
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Debt Securities so authenticated; and in case at that
time any of the Debt Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Debt Securities either in the
name of such successor Trustee or, if such successor Trustee is a successor by
merger, conversion or consolidation, the name of any predecessor hereunder; and
in all such cases such certificate shall have the full force which it is
anywhere in the Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION 8.13. Limitation on Rights of Trustee as a
Creditor. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon
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the Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act of 1939 regarding the collection of claims against the Company
(or any such other obligor).
SECTION 8.14. Authenticating Agents. There may be
an Authenticating Agent or Authenticating Agents appointed by the Trustee from
time to time with power to act on its behalf and subject to its direction in
the authentication and delivery of any series of Debt Securities issued upon
original issuance, exchange, transfer or redemption thereof as fully to all
intents and purposes as though such Authenticating Agent (or Authenticating
Agents) had been expressly authorized to authenticate and deliver such Debt
Securities, and Debt Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as though authenticated by the Trustee hereunder. For all purposes of this
Indenture, the authentication and delivery of Debt Securities by any
Authenticating Agent pursuant to this Section 8.14 shall be deemed to be the
authentication and delivery of such Debt Securities "by the Trustee", and
whenever this Indenture provides that "the Trustee shall authenticate and
deliver" Debt Securities or that Debt Securities "shall have been authenticated
and delivered by the Trustee", such authentication and delivery by any
Authenticating Agent shall be deemed to be authentication and delivery by the
Trustee. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or Territory or the District of Columbia, with a combined capital
and surplus of at least $5,000,000 and authorized under such laws to act as an
authenticating agent, duly registered to act as such, if and to the extent
required by applicable law and subject to supervision or examination by Federal
or State authority. If such corporation publishes reports of its condition at
least annually pursuant to law or the requirements of such authority, then for
the purposes of this Section 8.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.14, or to be duly registered if and to the extent
required by applicable law and regulations, it shall resign immediately in the
manner and with the effect herein specified in this Section 8.14.
Whenever reference is made in this Indenture to the
authentication and delivery of Debt Securities of any series by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by its
Authenticating Agent appointed with respect to the Debt Securities of such
series and a certificate of authentication executed on behalf of the Trustee by
its Authenticating Agent appointed with respect to the Debt Securities of such
series.
Any corporation into which any Authenticating Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
authenticating agency business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, if such successor corporation
is otherwise eligible under this Section 8.14, without the execution or filing
of
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any paper or any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
In case at the time such successor to any such agency
shall succeed to such agency any of the Debt Securities shall have been
authenticated but not delivered, any such successor to such Authenticating
Agent may adopt the certificate of authentication of any predecessor
Authenticating Agent and deliver such Debt Securities so authenticated; and in
case at that time any of the Debt Securities shall not have been authenticated,
any successor to any Authenticating Agent may authenticate such Debt Securities
either in the name of any predecessor hereunder or in the name of the successor
Authenticating Agent; and in all cases such certificate shall have the full
force which it has anywhere in the Debt Securities or in this Indenture
provided that the certificate of the predecessor Authenticating Agent shall
have had such force; provided, however, that the right to adopt the certificate
of authentication of any predecessor Authenticating Agent or to authenticate
Debt Securities in the name of any predecessor Authenticating Agent shall apply
only to its successor or successors by merger, conversion or consolidation.
Any Authenticating Agent may at any time resign as
Authenticating Agent with respect to any series of Debt Securities by giving
written notice of resignation to the Trustee and to the Company. The Trustee
may at any time terminate the agency of any Authenticating Agent with respect
to any series of Debt Securities by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time Authenticating
Agent shall cease to be eligible under this Section 8.14, the Trustee may, and
shall, upon request of the Company, promptly use its best efforts to appoint a
successor Authenticating Agent.
Upon the appointment, at any time after the original
issuance of any of the Debt Securities, of any successor, additional or new
Authenticating Agent, the Trustee shall give written notice of such appointment
to the Company and shall at the expense of the Company mail notice of such
appointment to all Holders of Debt Securities of such series as the names and
addresses of such Holders appear on the Debt Security Register.
Any successor Authenticating Agent with respect to
any series of Debt Securities upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as though originally named as an Authenticating
Agent herein with respect to such series. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 8.14
and duly registered if and to the extent required under applicable law and
regulations.
Any Authenticating Agent by the acceptance of its
appointment with respect to any series of Debt Securities shall be deemed to
have agreed with the Trustee that: it will perform and carry out the duties of
an Authenticating Agent as herein set forth with respect to such series,
including among other things the duties to authenticate and deliver Debt
Securities when presented to it in connection with exchanges, registrations of
transfer or
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redemptions thereof; it will keep and maintain, and furnish to the Trustee from
time to time as requested by the Trustee appropriate records of all
transactions carried out by it as Authenticating Agent and will furnish the
Trustee such other information and reports as the Trustee may reasonably
require; it is eligible for appointment as Authenticating Agent under this
Section 8.14 and will notify the Trustee promptly if it shall cease to be so
qualified; and it will indemnify the Trustee against any loss, liability or
expense incurred by the Trustee and will defend any claim asserted against the
Trustee by reason of any acts or failures to act of the Authenticating Agent
with respect to such series but it shall have no liability for any action taken
by it at the specific written direction of the Trustee.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation and expenses for its services,
and the Trustee shall have no liability for such payments.
The provisions of Sections 8.02(a), (b), (c), (e) and
(f), 8.03, 8.04, 8.06 (insofar as it pertains to indemnification), 9.01, 9.02
and 9.03 shall bind and inure to the benefit of each Authenticating Agent to
the same extent that they bind and inure to the benefit of the Trustee.
If an appointment with respect to one or more series
is made pursuant to this Section 8.14, the Debt Securities of such series may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Debt Securities of the series
designated herein issued under the within-mentioned Indenture.
CHEMICAL BANK DELAWARE CHEMICAL BANK DELAWARE
As Trustee As Trustee
- OR -
By: By: Chemical Bank
----------------------------------
Authorized Officer As Authenticating Agent
By:
--------------------------------
Authorized Signatory
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ARTICLE NINE.
CONCERNING THE HOLDERS.
SECTION 9.01. Action by Holders. Whenever in this
Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Debt Securities of any series may take any
action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage of
such series have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by Holders of such series in
person or by agent or proxy appointed in writing, or (b) by the record of the
Holders of such series voting in favor thereof at any meeting of such Holders
duly called and held in accordance with the provisions of Article Ten, or (c)
by a combination of such instrument or instruments and any such record of such
a meeting of Holders of such series.
SECTION 9.02. Proof of Execution by Holders.
Subject to the provisions of Sections 8.01, 8.02 and 10.05, proof of the
execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Debt Securities shall be provided by the Debt
Security Register or by a certificate of the Debt Security registrar with
respect to a series of Debt Securities.
The record of any Holders' meeting shall be proved
in the manner provided in Section 10.06.
SECTION 9.03. Who Are Deemed Absolute Owners. The
Company, the Trustee with respect to a series of Debt Securities, and any agent
of the Trustee or the Company under this Indenture may deem the Person in whose
name such Debt Security shall be registered upon the Debt Security Register to
be, and may treat him as, the absolute owner of such Debt Security (whether or
not such Debt Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Company, the
Trustee or any such agent) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and interest on such Debt
Security and for all other purposes; and neither the Company nor the Trustee
nor any such agent shall be affected by any notice to the contrary. All such
payments so made to any Holder for the time being or upon his order shall, to
the extent of the sum or sums so paid, be effectual to satisfy and discharge
the liability for moneys payable upon any such Debt Security.
SECTION 9.04. Company-Owned Debt Securities
Disregarded. In determining whether the Holders of the requisite aggregate
principal amount of Debt Securities of any series have concurred in any
direction or consent under this Indenture, Debt Securities of such series which
are owned by the Company or any other obligor on the Debt
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Securities of such series or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on such Debt Securities shall be disregarded and deemed not
to be Outstanding for the propose of any such determinations; provided,
however, that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction or consent only such Debt Securities
which the Trustee knows are so owned shall be so disregarded. Debt Securities
so owned which have been pledged in good faith may be regarded as Outstanding
notwithstanding this Section 9.04 if the pledgee shall establish to the
satisfaction of the Trustee the right of the pledgee to vote such Debt
Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. Upon request of the Trustee, the
Company shall furnish to the Trustee promptly an Officer's Certificate listing
and identifying all Debt Securities of a series, if any, known by the Company
to be owned or held by or for the account of the Company or any other obligor
on such Debt Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any other obligor on such Debt Securities; and, subject to the provisions of
Section 8.01, the Trustee shall be entitled to accept such Officers'
Certificates as conclusive evidence of the facts therein set forth and of the
fact that all such Debt Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 9.05. Revocation of Consents; Future Holders
Bound. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 9.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Debt Securities of any series
specified in this Indenture in connection with such action, any Holder of a
Debt Security which is shown by the evidence to be included in the Debt
Securities the Holders of which have consented to or are bound by consents to
such action, may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 9.02, revoke such
action so far as concerns such Debt Security. Except as aforesaid any such
action taken by the Holder of any Debt Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Debt Security
and of any Debt Security issued on transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Debt Security. Any action taken by the Holders
of the percentage in aggregate principal amount of the Debt Securities
specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all of
the Debt Securities affected by such action.
ARTICLE TEN
HOLDERS' MEETINGS.
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SECTION 10.01. Purposes of Meetings. A meeting of
Holders of the Debt Securities of all or any series may be called at any time
and from time to time pursuant to the provisions of this Article Ten for any of
the following purposes:
(1) to give any notice to the Company or to the
Trustee with respect to such series, or to give any
directions to the Trustee, or to consent to the
waiving of any default hereunder and its
consequences, or to take any other action authorized
to be taken by Holders pursuant to any of the
provisions of Article Seven;
(2) to remove the Trustee and nominate a
successor trustee pursuant to the provisions
of Article Eight;
(3) to consent to the execution of an indenture
or indentures supplemental hereto pursuant to the
provisions of Section 11.02; or
(4) to take any other action authorized to be
taken by or on behalf of the Holders of any specified
aggregate principal amount of the Debt Securities of
all or any series, as the case may be, under any
other provision of this Indenture or under applicable
law.
SECTION 10.02. Call of Meetings by Trustee. The
Trustee may at any time call a meeting of Holders of Debt Securities of all or
any series to take any action specified in Section 10.01, to be held at such
time and at such place as the Trustee shall determine. Notice of every meeting
of the Holders of Debt Securities of all or any series, setting forth the time
and place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed by the Trustee to Holders of Debt Securities
of each series that may be affected by the action proposed to be taken at such
meeting at their addresses as they shall appear on the Debt Security Register.
Such notice shall be mailed not less than 20 nor more than 90 days prior to the
date fixed for the meeting.
SECTION 10.03. Call of Meetings by Company or
Holders. In case at any time the Company, pursuant to a resolution by the
Board of Directors, or the Holders of at least 10% in aggregate principal
amount of the Debt Securities then Outstanding of each series that may be
affected by the action proposed to be taken shall have requested the Trustee to
call a meeting of such Holders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Holders may determine the time and place for
such meeting and may call such meeting to take any action authorized in Section
10.01, by mailing notice thereof as provided in Section 10.02.
SECTION 10.04. Qualifications for Voting. To be
entitled to vote at any meeting of Holders of Debt Securities a person shall
(a) be a Holder of one or more
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Debt Securities of a series affected by the action proposed to be taken or (b)
be a Person appointed by an instrument in writing as proxy by a Holder of one
or more such Debt Securities. The rights of Holders of Debt Securities to have
their votes counted shall be subject to the provision in the definition of
"Outstanding" in Section 1.01. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Debt Securities shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 10.05. Regulations. Notwithstanding any
other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Debt
Securities, in regard to proof of the holding of Debt Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulation, the holding of Debt Securities shall be proved
in the manner specified in Section 9.02 and the appointment of any proxy shall
be proved in the manner specified in said Section 9.02 or by having the
signature of the Person executing the proxy witnessed or guaranteed by any
bank, broker or trust company.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Debt Securities as provided in Section
10.03, in which case the Company or the Holders of Debt Securities as provided
in Section 10.03, in which case the Company or the Holders of Debt Securities
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a secretary of the meeting shall
be elected by vote of the Holders of a majority in aggregate principal amount
of the Debt Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 9.04, at any
meeting each Holder of a Debt Security of a series entitled to vote at such
meeting or proxy shall be entitled to one vote for each $1,000 principal amount
of Debt Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Debt Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote except as a Holder of Debt Securities of such series or proxy therefor.
Any meeting of Holders of Debt Securities duly called pursuant to the
provisions of Section 10.02 or 10.03 may be adjourned from time to time and the
meeting may be held as so adjourned without further notice.
At any meeting of Holders of Debt Securities, the
presence of Persons holding or representing Debt Securities in an aggregate
principal amount sufficient to take action upon the business for the
transaction of which such meeting was called shall be necessary to constitute a
quorum; but, if less than quorum be present, the Persons holding or
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representing a majority of the Debt Securities represented at the meeting may
adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present.
SECTION 10.06. Voting. The vote upon any resolution
submitted to any meeting of Holders of Debt Securities shall be by written
ballots on which shall be subscribed the signatures of the holders of Debt
Securities entitled to vote at such meeting or of their representatives by
proxy, and the letter or letters, serial number or numbers or other
distinguishing marks of the Debt Securities held or represented by him. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate
of the proceedings of each meeting of Holders of Debt Securities shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 10.02. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 10.07. No Delay of Rights by Meeting.
Nothing in this Article Ten contained shall be deemed or construed to authorize
or permit, by reason of any call of a meeting of Holders of Debt Securities of
any or all series or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Holders of Debt Securities
under any of the provisions of this Indenture or of the Debt Securities.
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01 Supplemental Indentures without
Consent of Holders. The Company, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
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(a) to evidence the succession of another
corporation to the Company, or successive
successions, and the assumption by the successor
corporation of the covenants, agreements and
obligations of the Company pursuant to Articles Five
and Twelve hereof;
(b) to add to the covenants of the Company such
further covenants, restrictions, conditions or
provisions as the Board of Directors and the Trustee
shall consider to be for the protection of the
Holders of Debt Securities of any or all series, and
to make the occurrence, or the occurrence and
continuance, of a default in any of such additional
covenants, restrictions, conditions or provisions a
default or an Event of Default with respect to such
series permitting the enforcement of all or any of
the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect
of any such additional covenant, restriction or
condition, such supplemental indenture may provide
for a particular period of grace after default (which
period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such
default;
(c) to cure any ambiguity or to correct or
supplement any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained
herein or in any supplemental indenture; to convey,
transfer, assign, mortgage or pledge any property to
or with the Trustee; or to make such other provisions
in regard to matters or questions arising under this
Indenture as shall not adversely affect the interests
of the Holders of the Debt Securities;
(d) to secure the Debt Securities of all series
in accordance with the provisions of Sections 5.05;
(e) to evidence and provide for the acceptance of
appointment by another corporation as a successor
Trustee hereunder with respect to one or more series
of Debt Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant
to Section 8.11;
(f) to modify, amend or supplement this Indenture
in such a manner as to permit the qualification of
any indenture supplemental hereto under the Trust
Indenture Act of 1939 as then in effect, except that
nothing herein contained shall permit or authorize
the inclusion in any
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indenture supplemental hereto of the provisions
referred to in Section 316(a)(2) of the Trust
Indenture Act of 1939;
(g) to provide for the issuance under this
Indenture of Debt Securities in coupon form
(including Debt Securities registrable as to
principal only) and to provide for exchangeability of
such Debt Securities with Debt Securities of the same
series issued hereunder in fully registered form and
to make all appropriate changes for such purpose;
(h) to change or eliminate any of the provisions
of this Indenture, provided, however, that any such
change or elimination shall become effective only
when there is no Debt Security Outstanding of any
series created prior to the execution of such
supplemental indenture which is entitled to the
benefit of such provision; or
(i) to establish any additional form of Debt
Security, as permitted by Section 2.02, and to
provide for the issuance of any additional series of
Debt Securities, as permitted by Section 3.01, and to
set forth the terms thereof.
The Trustee is hereby required to join with the
Company in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the
provisions of this Section 11.01 may be executed by the Company and the Trustee
without the consent of the Holders of any of the Debt Securities at the time
Outstanding, notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. Supplemental Indentures with Consent
of Holders. With the consent (evidenced as provided in Section 9.01) of the
Holders of greater than 50% in aggregate principal amount of the Outstanding
Debt Securities of each series affected by such supplemental indenture (all
such Holders voting as a single class), by act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Debt Securities of each series under this
Indenture; provided, however, that no such supplemental indenture shall (i)
without the consent of the Holder of each Outstanding Debt Security
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affected thereby, extend the fixed maturity of any Debt Security, or reduce the
rate or extend the time of payment of interest thereon, or reduce the principal
amount thereof or any premium thereon, or make the principal thereof or
interest or premium thereon payable in any coin or currency other than that
provided in the Debt Securities or (ii) without the consent of the Holders of
all of the Outstanding Debt Securities of each series affected reduce the
aforesaid percentage of Debt Securities, the Holders of which are required to
consent (a) to any such supplemental indenture, (b) to rescind and annul a
declaration that any Debt Securities are due and payable as a result of the
occurrence of an Event of Default, (c) to waive any past default under the
Indenture and its consequences and (d) to waive compliance with Sections 5.02
and 5.04 (other than 5.04(a)(1) and (2)) to 5.08, inclusive.
Upon the request of the Company, accompanied by a
copy of a Board Resolution certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders of Debt
Securities as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Holders of Debt Securities under this Section 11.02 to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
SECTION 11.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions of
this Article Eleven, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitation of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of Debt Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 11.04. Notation on Debt Securities. Debt
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article Eleven may bear a notation
in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Debt Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by
the Company, authenticated by the Trustee and delivered in exchange for the
Outstanding Debt Securities of such series.
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SECTION 11.05. Evidence of Compliance of
Supplemental Indenture to be Furnished Trustee. The Trustee, subject to the
provisions of Sections 8.01 and 7.02, shall receive, and shall be fully
protected in relying upon, an Officer's Certificate and an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Eleven and is authorized and
permitted by this Indenture.
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE AND CONVEYANCE.
SECTION 12.01. Company May Consolidate, etc., on
Certain Terms. Nothing contained in this Indenture or in any of the Debt
Securities shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance or lease of all or substantially all of the property of the Company
to any other corporation (whether or not affiliated with the Company)
authorized to acquire and operate the same; provided, however, and the Company
hereby covenants and agrees, that any such consolidation, merger, sale,
conveyance or lease shall be upon the condition that (a) immediately after such
consolidation, merger, sale, conveyance or lease the corporation (whether the
Company or such other corporation) formed by or surviving any such
consolidation or merger, or to which such sale, conveyance or lease shall have
been made, shall not be in default in the performance or observance of any of
the terms, covenants and conditions of this Indenture to be kept or performed
by the Company; (b) the corporation (if other than the Company) formed by or
surviving any such consolidation or merger or to which such sale, conveyance or
lease shall have been made, shall be a corporation organized under the laws of
the United States of America or any state thereof; and (c) the due and punctual
payment of the principal of and premium, if any, and interest on all of the
Debt Securities, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the Corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been merged, or by
the corporation which shall have acquired or leased such property.
SECTION 12.02. Successor Corporation to be
Substituted. In case of any such consolidation, merger, sale, conveyance or
lease and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the due and punctual payment of the principal of and premium,
if any, and interest on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to performed or observed by the Company, such successor corporation
shall succeed to and be
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substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and (except in the event of a conveyance
by way of lease) the predecessor corporation shall be relieved of any further
obligation under this Indenture and the Debt Securities. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of Johnson Controls, Inc. any or all of the Debt Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor corporation
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Debt Securities which previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any Debt
Securities which such successor corporation thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Debt Securities of each
series so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debt Securities of such series theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debt Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale,
conveyance or lease such changes in phraseology and form (but not in substance)
may be made in the Debt Securities thereafter to be issued as may be
appropriate.
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SECTION 12.03. Opinion of Counsel to Be Given
Trustee. The Trustee, subject to Sections 8.01 and 8.02, shall receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale or conveyance and any such assumption complies with the provisions of this
Article Twelve and that all conditions precedent herein provided relating to
such transactions have been complied with.
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 13.01. Satisfaction, Discharge and
Defeasance of Debt Securities of any Series. The Company shall be deemed to
have paid and discharged the entire indebtedness on all the Debt Securities of
a series, the provisions of this Indenture (except as to (x) the rights of
Holders of Debt Securities of such series to receive, from the money, in the
currency required, and Government Obligations deposited with the Trustee
pursuant to Section 13.03 or the interest and principal received by the Trustee
in respect of such Government Obligations, payment of the principal of (and
premium, if any) and any installment of principal of (and premium, if any) or
interest on such Debt Securities on the Stated Maturities thereof or upon the
Redemption Dates for Debt Securities required to be redeemed pursuant to any
mandatory sinking fund or analogous provisions relating to Debt Securities of
that series or pursuant to any call for redemption relating to Debt Securities
of that series, (y) the Company's rights and obligations with respect to such
Debt Securities under Sections 3.06, 3.07, 13.03 and 13.04, 5.02, 5.04, 6.01,
8.06, 8.10, 8.11 and, to the extent applicable to such series, Article Four, so
long as the principal of (and premium, if any) and interest on the Debt
Securities of such series remain unpaid and, thereafter, only the Company's
rights and obligations under Sections 5.04, 8.06, 13.03 and 13.04, and (z) the
rights, powers, trusts, duties and immunities of the Trustee with respect to
the Debt Securities of such series) as it relates to such Debt Securities shall
no longer be in effect, and the Trustee, at the expense of the Company, shall,
upon Company Request, execute proper instruments acknowledging the same if:
(a) (1) all Debt Securities of such series
therefore authenticated and delivered (other than (i)
Debt Securities which have been destroyed, lost or
stolen and which have been replaced or paid as
provided in Section 3.07 and (ii) Debt Securities for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged
from such trust, as provided in Sections 13.03 and
13.04) have been delivered to the Trustee for
cancellation;
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(2) the Company has paid or caused to be paid in
the currency required all other sums payable under
this Indenture in respect of the Debt Securities of
such series; and
(3) the Company has delivered to the Trustee an
Officers' Certificate, an Opinion of Counsel and a
written opinion of independent public accountants,
each stating that all conditions precedent herein
provided for relating to the satisfaction of the
entire indebtedness of all Debt Securities of any
such series and the discharge of the Indenture as it
relates to such Debt Securities have been complied
with; or
(b) (1) all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or (ii) will become
due and payable at their Stated Maturity within one
year, or (iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense of the
Company;
(2) the condition described in paragraph (1) of
Section 13.02 has been satisfied; and
(3) the conditions described in paragraphs (a)(2)
and (a)(3) of this Section 13.01 have been satisfied;
or
(c) (1) the conditions referred to in paragraphs
(b)(2) and (b)(3) of this Section 13.01 have been
satisfied;
(2) no Event of Default or event which with
notice or lapse of time would become an Event of
Default shall have occurred and be continuing on the
date of the deposit referred to in paragraph (1) of
Section 13.02 or on the ninety- first day after the
date of such deposit; provided, however, that should
that condition fail to be satisfied on or before such
ninety-first day, the Trustee shall promptly, upon
satisfactory receipt of evidence of such failure,
return such deposit to the Company;
(3) the Company has either (i) delivered to the
Trustee an opinion of counsel of a
nationally-recognized independent tax counsel to the
effect that Holders of the Debt Securities of such
series will not recognize income, gain or loss for
Federal income tax purposes as a result of such
deposit and the satisfaction, discharge and
defeasance contemplated by this paragraph (c) of this
Section 13.01 and will be subject to Federal income
tax on the same amounts and in the same
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manner and at the same times as would have been the
case if such deposit and defeasance had not occurred
or (ii) the Company shall have received from, or
there shall have been published by, the United States
Internal Revenue Service a ruling to the effect
stated in (i) of this Section 13.01(c)(3); and
(4) the Company has received an Opinion of
Counsel to the effect that the satisfaction,
discharge and defeasance contemplated by this Section
13.01 will not result in the delisting of the Debt
Securities of that series from any
nationally-recognized securities exchange on which
they are listed.
SECTION 13.02. Defeasance of Debt Securities of any
Series. The provisions of this Indenture (except as to (x) the rights of
Holders of Debt Securities of any series to receive, from the money, in the
currency required, and Government Obligations deposited with the Trustee
pursuant to paragraph (1) below or the interest and principal received by the
Trustee in respect of such Government Obligations, payment of the principal of
(and premium, if any) and any installment of principal of (and premium, if any)
or interest on such Debt Securities on the Stated Maturities thereof or upon
the Redemption Dates for Debt Securities required to be redeemed pursuant to
any mandatory sinking or analogous provisions relating to Securities of that
series or pursuant to any call for redemption relating to Debt Securities of
that series, (y) the Company's rights and obligations with respect to such Debt
Securities under Sections 3.06, 3.07, 13.03, 13.04, Article Seven (other than
subsections (d) and (e) of Section 7.01), Sections 5.01, 5.02, 5.04, 6.01,
8.06, 8.10, 8.11 and, to the extent application to such series, Article Four,
so long as the principal of (and premium, if any) and interest on the Debt
Securities of such series remain unpaid and, thereafter, only the Company's
rights and obligations under Sections 5.04, 8.06, 13.03 and 13.04, and (z) the
rights, powers, trusts, duties and immunities of the Trustee with respect to
the Debt Securities of such series) as it relates to Debt Securities of any
series shall no longer be in effect, and the Trustee, at the expense of the
Company shall, upon Company Request, execute proper instruments acknowledging
the same if:
(1) the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust
for the purpose (A) the Dollars of Foreign Currency,
as applicable, in an amount, or (B) Government
Obligations which through the payment of interest and
principal in respect thereof in accordance with their
terms will provide on or before the due date of any
payment in respect of such series of Debt Securities
in an amount, or (C) a combination thereof,
sufficient, after payment of all Federal, state and
local taxes in respect thereof payable by the
Trustee, in the opinion of a nationally-recognized
firm of independent public accountants expressed in a
written certification thereof delivered to the
Trustee, to pay and discharge (i) the principal of
(and premium, if any) and each installment of
principal (and premium, if any) and
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interest on the Outstanding Debt Securities of that
series on the Stated Maturity of such principal or
installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments
or payments pursuant to any call for redemption
applicable to Debt Securities of such series on the
day on which such payments are due and payable in
accordance with the terms of the Indenture and such
Debt Securities;
(2) no Event of Default or event which with
notice or lapse of time would become an Event of
Default shall have occurred and be continuing on the
date of such deposit;
(3) the interest of the Holders in such deposit
shall have been duly perfected under the applicable
provisions of the Uniform Commercial Code; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided
for relating to the defeasance contemplated by this
Section have been complied with.
SECTION 13.03. Application of Trust Funds;
Indemnification. (a) Subject to the provisions of Section 13.04, all money
and Government Obligations deposited with the Trustee pursuant to Section 13.01
or 13.02 and all money received by the Trustee in respect of Government
Obligations deposited with the Trustee, shall be held in trust and applied by
it, in accordance with the provisions of the Debt Securities and this
Indenture, to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money and Government Obligations have
been deposited with or received by the Trustee as contemplated by Section 13.01
or 13.02.
(b) The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to Section 13.01 or 13.02 or the
interest and principal received in respect of such obligations, other than any
such tax, fee or other charge payable by or on behalf of Holders. The Company
shall be entitled to prompt notice of an assessment or the commencement of any
proceeding for which indemnification may be sought hereunder and, at its
election, to contest such assessment or to participate in, assume the defense
of, or settle such proceeding.
(c) The Trustee shall deliver or pay to the Company
from time to time upon Company Request any Government Obligations or money held
by it as provided in Section 13.01 or 13.02 which, in the opinion of a
nationally-recognized firm of independent
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public accountants expressed in a written certification thereof delivered to
the Trustee, are then in excess of the amount thereof which then would have
been required to be deposited for the purpose for which such obligations or
money were deposited or received.
(d) If the Trustee is unable to apply any money or
Government Obligations in accordance with Section 13.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Debt Securities, if any, of
such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 13.02 until such time as the Trustee is permitted to apply
all such money or Government Obligations in accordance with Section 13.02;
provided, however, that if the Company has made any payment of interest on or
principal of (and premium, if any) on any Debt Securities, if any, of such
series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such series of Debt Securities, if
any, to receive such payment from the money or Government Obligations held by
the Trustee.
SECTION 13.04. Return of Unclaimed Moneys. Any
moneys deposited with or paid to the Trustee or any paying agent for payment of
the principal of and premium, if any, or interest on Debt Securities and not
applied but remaining unclaimed by the Holders of Debt Securities for two years
after the date upon which the principal of and premium, if any, or interest on
such Debt Securities, as the case may be, shall have become due and payable,
shall be repaid to the Company by the Trustee or such paying agent on demand;
and the Holder of any of the Debt Securities entitled to receive such payment
shall thereafter look only to the Company for any payment thereof.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Debt Securities Solely
Corporate Obligations. No recourse under or upon any obligation, covenant or
agreement of this Indenture, any supplemental indenture, or of any Debt
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer, director or employee, as
such, past, present or future, of the Company or any Subsidiary or of any
predecessor or successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders,
officers, directors or employees, as such, of the Company or of
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any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture, or in any of
the Debt Securities or implied thereby; and that any and all such personal
liability, either at common law or in equity or by constitution or statute of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Debt
Securities or implied thereby, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of such Debt Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Provisions Binding on Successors of
the Company. All of the covenants, stipulations, promises and agreements in
this Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 15.02. Indenture for Sole Benefit of Parties
and Holders of Debt Securities. Nothing in this Indenture or in the Debt
Securities, expressed or implied, shall give or be construed to give to any
Person, firm or corporation, other than the parties hereto, any agent of the
Trustee or the Company under this Indenture and the Holders of the Debt
Securities, any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being, subject to the
provisions of Articles Twelve and Fourteen, for the sole benefit of the parties
hereto, any agent of the Trustee or the Company under this Indenture and the
Holders of the Debt Securities.
SECTION 15.03. Addresses for Notices, etc. Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Debt
Securities on the Company may be given or served by being deposited, registered
or certified mail postage prepaid, in a post office letter box in the United
States addressed (until another address is filed by the Company with the
Trustee) to the Company, 5757 North Green Bay Road, Milwaukee, Wisconsin 53201,
Attention: Secretary. Any notice, direction, request or demand by any Holder
of a Debt Security or the Company to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the principal office of the Trustee, addressed to the attention of
its Corporate Trust Department. Any notice, report or other instrument
required by any of the provisions of this Indenture to be given by the Trustee
to the Holders of Debt Securities of any or all series shall be deemed to have
been sufficiently given, for all purposes, when mailed by first class mail.
73
<PAGE> 82
SECTION 15.04. New York Contract. This Indenture
and the Debt Securities shall for all purposes be construed in accordance with
and governed by the laws of the State of New York.
SECTION 15.05. Evidence of Compliance with
Conditions Precedent. Upon any Company request to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any (including any covenant, compliance with which constitutes a condition
precedent) provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing
of such document is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (1) a
statement that the Person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in the opinion of
such Person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been complied with.
SECTION 15.06. Legal Holidays. In any case where
the date of maturity of interest on or principal of or premium, if any, on any
series of Debt Securities or the date fixed for redemption of any Debt Security
or Debt Securities will be a legal holiday or a day on which banking
institutions are legally authorized or obligated to close in Delaware or any
other location where a paying agent appointed pursuant to Section 5.02 is
located, then payment of such interest on or principal of and premium, if any,
on such Debt Securities need not be made by such paying agent on such date but
may be made by such paying agent on the next succeeding business day that is
not a day in such location that is either a legal holiday or a day on which
banking institutions are legally authorized or obligated to close, with the
same force and effect as if made on such date of maturity or the date fixed for
redemption and no interest shall accrue for the period from and after such
prior date.
SECTION 15.07. Trust Indenture Act of 1939 to
Control. If any provision hereof limits, qualifies or conflicts with the
duties imposed by any of Sections 310 through 317 of the Trust Indenture Act of
1939, by the operation of Section 318(c) thereof, such imposed duties shall
control, except as, and to the extent, expressly excluded from this Indenture,
as permitted by the Trust Indenture Act of 1939. If any provision of this
74
<PAGE> 83
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 15.08. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and sections
of this Indenture have been inserted for convenience of reference only, are not
to be considered a part hereof, and shall in no way modify or restrict any of
the terms or provisions hereof.
SECTION 15.09. Determination of Principal Amount.
In determining whether the Holders of the requisite principal amount of
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, (i) the
principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 7.01,
(ii) the principal amount of any Debt Securities denominated in a Foreign
Currency that shall be deemed to be Outstanding for such purposes shall be
determined by converting the Foreign Currency into Dollars at the Market
Exchange Rate as of the date of such determination and (iii) the principal
amount of any Indexed Debt Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal face amount of such Indexed
Debt Security at original issuance, unless otherwise provided in or pursuant to
this Indenture.
SECTION 15.10. Execution in Counterparts. This
Indenture may be executed in any number of counterparts, each of which shall be
an original and such counterparts shall together constitute but one and the
same instrument. Chemical Bank Delaware hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
75
<PAGE> 84
IN WITNESS WHEREOF, JOHNSON CONTROLS, INC. has caused
this Indenture to be signed and acknowledged by its President and either its
Chief Financial Officer or its Treasurer, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or an Assistant
Secretary, and CHEMICAL BANK DELAWARE has caused this Indenture to be signed
and acknowledged by one of its Senior Trust Officers, has caused its corporate
seal to be affixed hereunto, and the same to be attested by its Secretary or
one of its Assistant Secretaries, as of the day and year first written above.
JOHNSON CONTROLS INC.
By /s/ Stephen A. Roell
--------------------------
Title Vice President
By /s/ Ben C. M. Bastianen
--------------------------
Title Treasurer
(CORPORATE SEAL)
ATTEST:
/s/ Jerome D. Okarma
- ----------------------
CHEMICAL BANK DELAWARE
By /s/ John J. Cashin
---------------------
(CORPORATE SEAL)
ATTEST:
/s/ Michael Denig
- ----------------------
76
<PAGE> 85
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On the 22nd day of February , 1995, before me personally came Stephen
A. Roell and Ben C.M. Bastianen , to me known, who, being by me duly sworn,
did depose and say that they are Vice President and Treasurer respectively,
of JOHNSON CONTROLS, INC., one of the corporations described in and which
executed the foregoing instrument; that they know the seal of said corporation;
that the seal affixed to said instrument bearing the name of said corporation is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; that they signed their names thereto by like
authority; and said they acknowledged said instrument to be their free act and
deed and the free act and deed of said corporation.
WITNESS my hand and official seal the day and year first above written.
/s/ Barbara L. Heil
-------------------------
Notary Public
(NOTARIAL SEAL) My commission expires: 1/31/99
77
<PAGE> 86
STATE OF DELAWARE
SS.:
COUNTY OF NEW CASTLE
On this 22nd day of February, 1995, before me personally came John J.
Cashin, to me known, who, being by me duly sworn, did depose and say that he is
a Senior Trust Officer of Chemical Bank Delaware, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument bearing the
name of said corporation is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority; and said John J. Cashin acknowledged said
instrument to be his free act and deed and the free act and deed of said
corporation.
WITNESS my hand and official seal the day and year first above written.
/s/ Diane L. Prengle
----------------------
Notary Public
(NOTARIAL SEAL) My commission expires:10/13/98
78
<PAGE> 1
EXHIBIT 4.2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ( THE "DEPOSITORY"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITORY OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY
PAYMENT IS MADE TO THE NOMINEE OF THE DEPOSITORY OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE
DEPOSITORY, HAS AN INTEREST HEREIN.]
REGISTERED REGISTERED
JOHNSON CONTROLS, INC.
MEDIUM-TERM NOTE, SERIES C
No. R-1 CUSIP
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE DESIGNATED METHOD) BELOW WILL
BE COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX
ORIGINAL ISSUE DISCOUNT ("OID") RULES.
FLOATING RATE NOTE
Original Issue Date: Initial Interest Rate:
Interest Accrual Date: Index Maturity:
Issue Price: Base Rate:
Principal Amount: Interest Reset Period:
Maturity Date: Interest Reset Dates:
Interest Payment Period: Spread (plus or minus):
Interest Payment Dates: Spread Multiplier:
Total Amount of OID: Maximum Interest Rate:
Yield to Maturity: Minimum Interest Rate:
Initial Accrual Period OID: Initial Redemption Date(s):
Repayment Date(s): Initial Redemption Price(s):
Repayment Price(s):
[Face Amount Currency:] [Designated Exchange Rate:]
[Optional Payment Currency:] [Optional Exchange Rate:]
[Note: Bracketed material shall be included only if applicable. All references
to foreign currencies shall be deleted from any Note that is held by Depository
Trust Company as a book-entry note.]
<PAGE> 2
[Option to Elect Payment in Specified Currency (Only applicable if Specified
Currency is other than U.S. Dollars):
[ ] Yes [ ] No
Authorized Denominations (Only applicable if Specified Currency is other than
U.S. Dollars):]
Johnson Controls, Inc., a Wisconsin corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
or registered assigns, the principal sum of [Specified Currency]
on the "Maturity Date," as set forth above, and to pay interest thereon as
described on the reverse hereof.
The principal of (and premium, if any) and interest on this Note are
payable by the Company in such coin or currency specified above as at the time
of payment shall be legal tender for the payment of public and private debts
(the "Specified Currency"). [If the Specified Currency is other than U.S.
Dollars, the Company will arrange to have all such payments converted into U.S.
Dollars in the manner described on the reverse hereof. Notwithstanding the
foregoing, the Holder hereof may, if so indicated above, elect to receive all
payments in respect hereof in the Specified Currency by delivery of a written
request to the Paying Agent located in The City of New York (initially,
Chemical Bank) not later than fifteen calendar days prior to the applicable
payment date. Such election will remain in effect until revoked by written
notice to such Paying Agent received not later than fifteen calendar days prior
to the applicable payment date.] [This note is a "Dual Currency Note" and the
Company has a one-time option, exercisable on a date or dates specified (each
an "Option Election Date") in whole, but not in part, with respect to all Dual
Currency Notes issued on the same day and having the same terms, of making all
payments of principal, premium, if any, and interest after the exercise of such
option, whether at maturity or otherwise (which payments would otherwise be
made in the currency in which such Note is denominated (the "Face Amount
Currency")), in the alternative currency for payment (the "Optional Payment
Currency"). The exchange rate designated for such issuance (the "Designated
Exchange Rate") will be a fixed exchange rate used for converting amounts
denominated in the Face Amount Currency into amounts denominated in the
Optional Payment Currency.]
-2-
<PAGE> 3
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, Johnson Controls, Inc. has caused this Note to be
duly executed under its corporate seal.
Dated:
--------------------- JOHNSON CONTROLS, INC.
(Seal)
By:
--------------------------------
[Chairman, President, a Vice
President or Treasurer]
ATTEST:
----------------------------
[Secretary or Assistant
Secretary]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein, described in
the within-mentioned Indenture.
CHEMICAL BANK DELAWARE
as Trustee
By:
--------------------------------
Authorized Officer
Or:
CHEMICAL BANK DELAWARE
as Trustee
By: CHEMICAL BANK
as Authenticating Agent
By:
---------------------------
Authorized Signatory
-3-
<PAGE> 4
(REVERSE OF REGISTERED NOTE)
JOHNSON CONTROLS, INC.
MEDIUM-TERM NOTE, SERIES C
1. This Note is one of a duly authorized issue of debentures,
notes or other evidences of indebtedness (hereinafter called the "Debt
Securities") of the Company of the series hereinafter specified, all such
securities issued and to be issued under an Indenture dated as of February 22,
1995, between the Company and Chemical Bank Delaware, as Trustee (herein called
the "Indenture"), to which Indenture and all other indentures supplemental
thereto reference is hereby made for a statement of the rights and limitations
of rights thereunder of the Holders of the Debt Securities and of the rights,
obligations, duties and immunities of the Trustee for each series of Debt
Securities and of the Company, and the terms upon which the Debt Securities are
and are to be authenticated and delivered.
As provided in the Indenture, the Debt Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, may be
issued in different denominations, may be issued in different currencies, may
be issued in global form, may be issuable upon the exercise of warrants, if
any, may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided or permitted.
This Note is one of a series of the Debt Securities designated therein
as Medium-Term Notes, Series C (the "Notes"). The Notes of this series may be
issued at various times with different maturity dates and different principal
repayment provisions, may bear interest at different rates, may be payable in
different currencies and may otherwise vary, all as provided in the Indenture.
2. A. The Regular Record Date with respect to any Interest
Payment Date (as defined below) shall be the date 15 calendar days immediately
preceding such Interest Payment Date, whether or not such date shall be a
Business Day. Interest which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall, unless otherwise provided, be
paid to the person in whose name the Note is registered at the close of
business on the Regular Record Date for such Interest; provided, however, that
interest payable on the Interest Payment Date occurring at Maturity will be to
the person to whom
-4-
<PAGE> 5
principal shall be payable; provided, further, that the first payment of
interest on any Note with an Original Issue Date between a Regular Record Date
and an Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the registered owner on
such next succeeding Regular Record Date. Notwithstanding the foregoing, any
interest that is payable but not punctually paid or duly provided for on any
Interest Payment Date shall forthwith cease to be payable to the registered
holder thereof on such Regular Record Date, and (i) may be paid to the person
in whose name such Note is registered on the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof having been given to the Holder of such Note not less
than ten days prior to such Special Record Date, or (ii) may be paid at any
time and in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debt Securities of that series may be
listed, as more fully provided in the Indenture. "Business Day" means any day,
other than a Saturday or Sunday, that meets each of the following applicable
requirements: the day is (a) not a day on which banking institutions are
authorized or required by law or regulation to be closed in The City of New
York, [(b) if this Note is denominated in a Specified Currency other than U.S.
Dollars, (i) not a day on which banking institutions are authorized or required
by law or regulation to close in the financial center of the country issuing
the Specified Currency (which in the case of ECU shall be London and Luxembourg
City, Luxembourg) and (ii) a day on which banking institutions in such
financial center are carrying out transactions in such Specified Currency, and]
(c) with respect to a LIBOR Note, a London Banking Day. "London Banking Day"
means any day on which dealings in deposits in U.S. Dollars are transacted in
the London interbank market. In connection with any calculations, all
percentages will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point being rounded upwards and all currency [or currency unit]
amounts used and resulting from such calculations on the Notes will be rounded
to the nearest one-hundredth of a unit (with .005 of a unit being rounded
upwards).
B. The Company promises to pay interest on the principal amount
at the rate per annum equal to the Initial Interest Rate shown on the face
hereof until the first Interest Reset Date shown on the face hereof following
the Original Issue Date specified on the face hereof and thereafter at a rate
determined in accordance with the provisions below under the heading
"Determination of CD Rate", "Determination of Commercial Paper Rate",
"Determination of Eleventh District Cost of Funds Rate", "Determination of
Federal Funds Rate", "Determination of LIBOR", "Determination of Prime Rate" or
"Determination of Treasury
-5-
<PAGE> 6
Rate", depending upon whether the Base Rate specified above is CD Rate,
Commercial Paper Rate, Eleventh District Rate, Federal Funds Rate, LIBOR, Prime
Rate or Treasury Rate, respectively, until the principal hereof is paid or duly
made available for payment. The Company will pay interest monthly, quarterly,
semi-annually or annually as specified on the face hereof under "Interest
Payment Period", commencing with the first Interest Payment Date specified on
the face hereof next succeeding the Original Issue Date, and at Maturity.
Unless otherwise provided on the face hereof, the dates on which interest will
be payable (each an "Interest Payment Date") will be, in the case of Notes with
a monthly Interest Payment Period, the third Wednesday of each month; in the
case of Notes with a quarterly Interest Payment Period, the third Wednesday of
March, June, September and December; in the case of Notes with a semi-annual
Interest Payment Period, the third Wednesday of the two months specified on the
face hereof; and in the case of Notes with an annual Interest Payment Date
Period, the third Wednesday of the month specified on the face hereof;
provided, however, that if an Interest Payment Date would fall on a day that is
not a Business Day, such Interest Payment Date shall be the following day that
is a Business Day, except that in case the Base Rate is LIBOR, if such Date
falls in the next calendar month, such Interest Payment Date shall be the
immediately preceding Business Day.
The interest payable on this Note on each Interest Payment Date will
include accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to but excluding such Interest Payment Date; provided, however, that if
the Interest Reset Period is daily or weekly, the interest payable on each
Interest Payment Date, other than at Maturity, will include accrued interest
from and including the Original Issue Date or from and including the last date
in respect of which interest has been paid, as the case may be, to, but
excluding, the Record Date immediately preceding such Interest Payment Date,
and the interest payable at Maturity will include accrued interest from and
including the Original Issue Date or from and including the last date in
respect of which interest has been paid, as the case may be, to, but excluding,
the Date of Maturity. Such accrued interest will be calculated by multiplying
the principal amount hereof by an accrued interest factor. This accrued
interest factor shall be computed by adding the interest factors calculated for
each day in the period for which accrued interest is being calculated. The
interest factor (expressed as a decimal) for each such day shall be computed by
dividing the interest rate applicable to such day by 360 if the Base Rate is CD
Rate, Commercial Paper Rate, Eleventh District Cost of Funds Rate, Federal
Funds Rate, Prime Rate or LIBOR, as indicated on the face hereof, or by the
actual number of days in the year if the Base Rate is Treasury Rate, as
indicated on the
-6-
<PAGE> 7
face hereof. The interest rate in effect on each day will be (a) if such day
is an Interest Reset Date, the interest rate with respect to the Interest
Determination Date pertaining to such Interest Reset Date or (b) if such day is
not an Interest Reset Date, the interest rate with respect to the Interest
Determination Date pertaining to the next preceding Interest Reset Date;
provided, however, that (i) the interest rate in effect from the Original Issue
Date to the first Interest Reset Date will be the Initial Interest Rate and
(ii) the interest rate in effect for the ten calendar days immediately prior to
Maturity will be that in effect on the tenth calendar day preceding Maturity.
Notwithstanding the foregoing, the interest rate hereon shall not be greater
than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate,
if any, shown on the face hereof. In addition, the interest rate hereon shall
in no event be higher than the maximum rate, if any, permitted by New York law.
Commencing with the first Interest Reset Date specified on the face hereof
following the Original Issue Date and thereafter upon each succeeding Interest
Reset Date specified on the face hereof, the rate at which interest on this
Note is payable shall be adjusted as specified on the face hereof under
Interest Reset Period; provided, however, that if any Interest Reset Date would
otherwise be a day that is not a Business Day, such Interest Reset Date shall
be postponed to the next day that is a Business Day, except that (i) if the
Base Rate is LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the immediately preceding Business Day
or (ii) if the Base Rate is Treasury Rate and the Interest Reset Date falls on
a Date which is an auction date, the Interest Reset Date shall be the following
day that is a Business Day.
The Interest Determination Date pertaining to an Interest Reset Date
will be, if the Base Rate is CD Rate, Commercial Paper Rate, Eleventh District
Cost of Funds Rate, Federal Funds Rate or Prime Rate, the second Business Day
next preceding such Interest Reset Date. The Interest Determination Date
pertaining to an Interest Reset Date will be, if the Base Rate is LIBOR, the
second London Banking Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date will be, if the Base
Rate is Treasury Rate, the day of the week in which such Interest Reset Date
falls on which Treasury bills (as defined below) of the Index Maturity
specified on the face hereof are auctioned. Treasury bills are normally
auctioned on Monday of each week, unless that day is a legal holiday, in which
case the auction is normally held on the following Tuesday, except that such
auction may be held on the preceding Friday. If, as a result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be the
Interest Determination Date pertaining to the Interest Reset Date occurring in
the next succeeding week.
-7-
<PAGE> 8
Subject to applicable provisions of law and except as specified
herein, on each Interest Reset Date the rate of interest shall be the rate
determined in accordance with the provisions of the applicable heading below.
Determination of CD Rate. If the Base Rate is CD Rate, as indicated
on the face hereof, the interest rate shall equal (a) the rate on the Interest
Determination Date specified on the face hereof for negotiable certificates of
deposit having the Index Maturity specified on the face hereof (1) as published
by the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication of the Board
of Governors of the Federal Reserve System (the "H.15(519)"), under the heading
"CDs (Secondary Market)" or (2) if such rate is not so published by 9:00 A.M.,
New York City time, on the Calculation Date (as defined below) pertaining to
such Interest Determination Date, then as published by the Federal Reserve Bank
of New York in its daily statistical release "Composite 3:30 P.M. Quotations
for U.S. Government Securities" (the "Composite Quotations") under the heading
"Certificates of Deposit" or (b) if neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the arithmetic mean as
calculated by the Calculation Agent of the secondary market offered rates as of
10:00 A.M., New York City time, on such Interest Determination Date of three
leading nonbank dealers in negotiable U.S. Dollar certificates of deposit in
The City of New York selected by the Calculation Agent for negotiable
certificates of deposit of major United States money center banks of the
highest credit standing (in the market for negotiable certificates of deposit)
with a remaining maturity closest to the Index Maturity (as specified on the
face hereof) in a denomination of $5,000,000, in each of the above cases
adjusted by the addition or subtraction of the Spread, if any, specific on the
face hereof, or by multiplication by the Spread Multiplier, if any, specified
on the face hereof; provided, however, that if such dealers are not quoting as
mentioned above, the interest rate in effect hereon until the Interest Reset
Date next succeeding the Interest Reset Date to which such Interest
Determination Date relates shall be the rate in effect hereon on such Interest
Determination Date.
Determination of Commercial Paper Rate. If the Base Rate is
Commercial Paper Rate, as indicated on the face hereof, the interest rate
shall equal (a) the Money Market Yield (as defined herein) on the Interest
Determination Date specified on the face hereof of the rate for commercial
paper having the Index Maturity specified on the face hereof (1) as published
in the H.15(519), under the heading "Commercial Paper", or (2) if such yield is
not so published by 9:00 A.M., New York City time, on the Calculation Date (as
defined below) pertaining to such Interest Determination Date, then as
published in the Composite Quotations under the
-8-
<PAGE> 9
heading "Commercial Paper" or (b) if neither of such yields is published by
3:00 P.M., New York City time, on such Calculation Date, the Money Market Yield
of the arithmetic mean of the offered rates, as of 11:00 A.M., New York City
time on such Interest Determination Date, of three leading dealers of
commercial paper in The City of New York, selected by the Calculation Agent,
for commercial paper of the Index Maturity specified on the face hereof placed
for an industrial issuer whose bond rating is "AA" or the equivalent, from a
nationally recognized rating agency, in each of the above cases adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof; provided, however, that if such dealers are not quoting as mentioned
above, the interest rate in effect hereon until the Interest Reset Date next
succeeding the Interest Reset Date to which such Interest Determination Date
relates shall be the rate in effect hereon on such Interest Determination Date.
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
D x 360
Money Market Yield = ------------------- x 100
360 -- (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of Eleventh District Cost of Funds Rate. If the Base
Rate is Eleventh District Cost of Funds Rate, as indicated on the face hereof,
the interest rate shall equal (a) the rate equal to the monthly weighted
average cost of funds for the calendar month preceding such Interest
Determination Date specified on the face hereof (1) as set forth under the
caption "11th District" on Telerate Page 7058 (as defined herein) as of 11:00
A.M., San Francisco time, on such Interest Determination Date, or (2) if such
rate does not appear on Telerate Page 7058 on the Calculation Date (as defined
below) pertaining to such Interest Determination Date, then the monthly
weighted average cost of funds paid by member institutions of the Eleventh
Federal Home Loan Bank District that was most recently announced (the "Index")
by the FHLB of San Francisco as such cost of funds for the calendar month
preceding the date of such announcement or (b) if the FHLB of San Francisco
fails to announce such rate for the calendar month next preceding such interest
Determination Date, then the Eleventh District Cost of Funds Rate in effect on
such Interest Determination Date.
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<PAGE> 10
"Telerate Page 7058" means the display on the Dow Jones Telerate
Service on such page (or such other page as may replace such page on the
service for the purpose of displaying the Eleventh District Cost of Funds Rate)
for the purpose of displaying the monthly average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District.
Determination of Federal Funds Rate. If the Base Rate is Federal
Funds Rate, as indicated on the face hereof, the interest rate shall equal (a)
the rate on the Interest Determination Date specified on the face hereof
for Federal Funds (1) as published in the H.15(519), under the heading "Federal
Funds (Effective)" or (2) if such rate is not so published by 9:00 A.M., New
York City time, on the Calculation Date (as defined below) pertaining to such
Interest Determination Date, then as published in the Composite Quotations
under the heading "Federal Funds/Effective Rate" or (b) if neither of such
rates is published by 3:00 P.M., New York City time, on such Calculation Date,
the arithmetic mean (as calculated by the Calculation Agent) of the rates for
the last transaction in overnight Federal Funds arranged by three leading
brokers of Federal Funds transactions in The City of New York selected by the
Calculation Agent as of 11:00 A.M., New York City time, on such Interest
Determination Date, in each of the above cases adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if such brokers are not quoting as mentioned above, the
interest rate in effect hereon until the Interest Reset Date next succeeding
the Interest Reset Date to which such Interest Determination Date relates shall
be the rate in effect hereon on such Interest Determination Date.
Determination of LIBOR. If the Base Rate indicated on the face hereof
is LIBOR, with respect to LIBOR indexed to the offered rates for U.S. Dollar
deposits, the interest rate shall equal the arithmetic mean (as calculated by
the Calculation Agent) of offered rates for deposits in U.S. Dollars having the
Index Maturity specified on the face hereof, commencing on the second London
Banking Day immediately following the Interest Determination Date specified on
the face hereof, which appear on the Reuters Screen LIBO Page as of 11:00 A.M.,
London time, on such Interest Determination Date, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if less than two such offered rates so appear, the
Calculation Agent shall request the principal London office of each of four
major banks in the London interbank market selected by the Calculation Agent to
provide a quotation of the rate at which such bank offered to prime banks in
the London interbank market at approximately 11:00 A.M., London time, on such
Interest Determination Date, on deposits in
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<PAGE> 11
U.S. Dollars having the Index Maturity specified on the face hereof commencing
on the second London Banking Day immediately following such Interest
Determination Date and in a principal amount equal to an amount not less than
U.S. $1,000,000 that is representative for a single transaction in such market
at such time, and such rate of interest hereon shall equal the arithmetic mean
of (a) such quotations, if at least two quotations are provided, or (b) if less
than two quotations are provided, the rates quoted at approximately 11:00 A.M.,
New York City time, on such Interest Determination Date by three major banks in
The City of New York selected by the Calculation Agent for Loans in U.S.
Dollars to leading European banks having the Index Maturity specified on the
face hereof commencing on the second London Banking Day immediately following
such Interest Determination Date and in a principal amount as aforesaid, in
either case, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof or by multiplication by the Spread Multiplier, if
any, specified on the face hereof; provided, however, that if the three banks
selected as aforesaid by the Calculation Agent are not quoting as mentioned
above, the interest rate in effect hereon until the Interest Reset Date next
succeeding the Interest Reset Date to which such Interest Determination Date
relates shall be the rate in effect hereon on such Interest Determination Date.
Determination of Prime Rate. If the Base Rate is Prime Rate, as
indicated on the face hereof, the interest rate shall equal (a) the rate on the
Interest Determination Date specified on the face hereof for Prime Rate (1) as
published in H.15(519), under the heading "Bank Prime Loan" or (2) if such rate
is not so published by 9:00 A.M., New York City time, on the Calculation Date
(as defined below) pertaining to such Interest Determination Date, then the
Prime Rate will be determined by the Calculation Agent and will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen NYMF Page (as defined herein) as such bank's
prime rate or base lending rate as in effect for that Interest Determination
Date or (b) if fewer than four such rates appear on the Reuters Screen NYMF
Page for the Interest Determination Date, the Prime Rate will be determined by
the Calculation Agent and will be the arithmetic mean of the prime rates quoted
on the basis of the actual number of days in the year divided by a 360-day year
as of the close of business on such Interest Determination Date by at least two
of three major money center banks in The City of New York selected by the
Calculation Agent. If fewer than two such rates are quoted as aforesaid, the
Prime Rate will be determined by the Calculation Agent on the basis of the
rates furnished in The City of New York by one or two, as the case may be,
substitute banks or trust companies organized and doing business under the laws
of the United States, or any State thereof, having total equity capital of at
least U.S. $500,000,000 and being
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<PAGE> 12
subject to supervision or examination by federal or state authority, selected
by the Calculation Agent to provide such rate or rates; provided, however, that
if the banks selected as aforesaid are not quoting as set forth above, the
Prime Rate will remain the Prime Rate then in effect on such Interest
Determination Date.
"Reuters Screen NYMF Page" means the display designated as page "NYMF"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the NYMF page on that service for the purpose of displaying the prime rate or
base rate of major United States banks).
Determination of Treasury Rate. If the Base Rate is Treasury Rate as
indicated on the face hereof, the interest rate shall equal the rate for the
auction held on the Interest Determination Date of direct obligations of the
United States ("Treasury bills") having the Index Maturity shown on the face
hereof as published in the H.15(519), under the heading "Treasury bills-auction
average (investment)" or, if not so published by 9:00 A.M., New York City time,
on the Calculation Date (as defined below) pertaining to such Interest
Determination Date, the auction average rate (expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the Treasury,
in either case, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, or, by multiplication by the Spread Multiplier,
if any, specified on the face hereof. In the event that the results of the
auction of Treasury bills having the Index Maturity shown on the face hereof
are not published or reported as provided above by 3:00 P.M., New York City
time, on such Calculation Date or if no such auction is held in a particular
week, then the rate of interest hereon shall be calculated by the Calculation
Agent and shall be a yield to maturity (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Interest Determination
Date, of three leading primary United States government securities dealers
selected by the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity shown on the face hereof,
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof, or by multiplication by the Spread Multiplier, if any, specified
on the face hereof; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the interest rate in effect hereon until the Interest Reset Date next
succeeding the Interest Reset Date to which such Interest Determination Date
relates shall be the rate in effect hereon on such Interest Determination Date.
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<PAGE> 13
The Calculation Date pertaining to an Interest Determination Date
shall be the tenth calendar day after such Interest Determination Date or if
any such day is not a Business Day, the next succeeding Business Day.
Initially, Chemical Bank shall be the Calculation Agent. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing and
will confirm in writing such calculation to the Trustee and any Paying Agent
immediately after each determination. Neither the Trustee nor any Paying Agent
shall be responsible for any such calculation. At the request of the Holder
hereof the Calculation Agent will provide to the Holder hereof the interest
rate hereon then in effect and, if determined, the interest rate which will
become effective as of the next Interest Reset Date.
3. Payments [in U.S. Dollars] of interest (other than interest
payable at Stated Maturity or upon earlier redemption or repayment) will be
made by mailing a check to the Holder at the address of the Holder appearing on
the Debt Security Register (as defined in the Indenture) on the applicable
Record Date. [Notwithstanding the foregoing, a Holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes of like tenor and terms (or a
holder of the equivalent thereof in a Specified Currency other than U.S.
Dollars as determined by the Currency Determination Agent on the basis of the
Market Exchange Rate (as defined below)) shall be entitled to receive such
payments in U.S. Dollars by wire transfer of immediately available funds, but
only if appropriate payment instructions have been received in writing by the
Company's Paying Agent not less than 15 days prior to the applicable Interest
Payment Date. Simultaneously with any election by the Holder hereof to receive
payments in a Specified Currency other than U.S. Dollars (by written request to
the Paying Agent as provided above), such Holder shall provide appropriate
payment instructions to such Paying Agent and all such payments will be made in
immediately available funds to an account maintained by the payee with a bank
located outside the United States.] Principal and any premium and interest
payable at Stated Maturity or upon earlier redemption or repayment will be paid
upon surrender of such Note at the office of the Paying Agent in the City of
New York or at such other place or agency as the Company may designate (i) in
immediately available funds or (ii) if appropriate payment instructions have
been received in writing by the Company's Paying Agent not less than 15 days,
or such lesser time as is acceptable to the Paying Agent, prior to the
applicable maturity, redemption or repayment date, by electronic transfer of
immediately available funds.
4. If specified on the face hereof, this Note may be redeemed, as
a whole or from time to time in part, at the option of the Company, on not less
than 30 nor more than 45 days' prior notice given as provided in the Indenture,
on any Redemption Date(s) and at the related Redemption Price(s) set forth on
the
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<PAGE> 14
face hereof. If less than all the Outstanding Notes of any series are to be
redeemed, the Company shall give the Trustee notice at least 45 days in advance
of the date fixed for redemption as to the aggregate principal amount of
Outstanding Notes to be redeemed. Outstanding Notes may be redeemed in part in
multiples equal to the minimum authorized denomination for Outstanding Notes of
such Series or any multiple thereof. Thereupon the Trustee shall select, in
such manner as in its sole discretion it shall deem appropriate and fair, the
Outstanding Notes or portions thereof to be redeemed, and shall as promptly as
practicable notify the Company of the Outstanding Notes or portions thereof so
selected. In the event of redemption of this Note in part only, a new Note or
Notes of this series of like tenor or terms for the unredeemed portion hereof
will be issued to the Holder hereof upon the cancellation hereof.
5. If specified on the face hereof, this Note will be subject to
repayment at the option of the Holder hereof on the Repayment Date(s) and at
the Repayment Price(s) indicated on the face hereof. If no such Repayment Date
is set forth on the face hereof, this Note may not be so repaid at the option
of the Holder hereof prior to Stated Maturity. On each Repayment Date, if any,
this Note shall be repayable in whole or in part at the option of the Holder
hereof at the applicable Repayment Price set forth on the face hereof, together
with interest thereon to the date of repayment. For this Note to be repaid in
whole or in part at the option of the Holder hereof, the Paying Agent in The
City of New York must receive not less than 30 or more than 45 days prior to
the Repayment Date (i) the Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a
trust company in the United States of America setting forth the name of the
Holder of the Note, the principal amount of the Note, the certificate number of
the Note or a description of the Note's tenor or terms, the principal amount of
the Note to be prepaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Note to be prepaid with the form
entitled "Option to Elect Repayment" on the reverse of the Note duly completed
will be received by such Paying Agent no later than five Business Days after
the date of such telegram, telex, facsimile transmission or letter and such
Note and form duly completed are received by such Paying Agent by such fifth
Business Day. Exercise of such repayment option shall be irrevocable. Such
option may be exercised by the Holder for less than that entire principal
amount provided that the principal amount remaining outstanding after repayment
is an authorized denomination.
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<PAGE> 15
[6. If the Specified Currency is other than U.S. Dollars, unless
the Holder has elected otherwise, payment in respect of this Note shall be made
in U.S. Dollars based upon the Exchange Rate as determined by the Currency
Determination Agent (initially, Chemical Bank) appointed by the Company for
such purpose based on the highest firm bid quotation for U.S. Dollars received
by such Currency Determination Agent at approximately 11:00 A.M. New York City
time on the second Business Day preceding the applicable payment date (or if no
such rate is quoted on such date the last date on which such rate was quoted),
from three recognized foreign exchange dealers in The City of New York selected
by the Currency Determination Agent and approved by the Company (one of which
may be the Currency Determination Agent) for the purchase by the quoting dealer
for settlement on such payment date of the aggregate amount of the Specified
Currency payable on such payment date in respect of all Notes denominated in
such Specified Currency. All currency exchange costs will be borne by the
Holders of such Notes by deductions from such payments. If no such bid
quotations are available, payments will be made in the Specified Currency
unless such Specified Currency is unavailable due to the imposition of exchange
controls or to other circumstances beyond the Company's control, in which case
the Company will be entitled to make payments in respect hereof in U.S. Dollars
as provided below.
Except as set forth below, if payment on a Note is required to be made
in a Specified Currency other than U.S. Dollars and such currency is
unavailable due to the imposition of exchange controls or to other
circumstances beyond the Company's control or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then all payments due on that due date with respect to such Note
shall be made in U.S. Dollars. The amounts so payable on any date in such
Specified Currency shall be converted into U.S. Dollars at a rate determined by
the Currency Determination Agent on the basis of the most recently available
noon buying rate for cable transfers in The City of New York as determined by
the Federal Reserve Bank of New York (the "Market Exchange Rate").
If payment on a Note is required to be made in ECU and ECU is
unavailable due to the imposition of exchange controls or to other
circumstances beyond the Company's control or is no longer used in the European
monetary system, then all payments due on that due date with respect to such
Note shall be made in U.S. Dollars. The amount so payable on any Date in ECU
shall be converted into U.S. Dollars at a rate determined by the Currency
Determination Agent, as of the second Business Day prior to the date on which
such payment is due on the following basis.
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<PAGE> 16
The component currencies of the ECU for this purpose (the
"Components") shall be the currency amounts which were components of the ECU as
of the last date on which the ECU was used in the European monetary system.
The equivalent of the ECU in U.S. Dollars shall be calculated by aggregating
the U.S. Dollar equivalents of the Components.
The U.S. Dollar equivalent of each of the Components shall be
determined by the Currency Determination Agent on the basis of the most
recently available Market Exchange Rate for such component.
If the official unit of any component currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
shall be divided or multiplied in the same proportion. If two or more
component currencies are consolidated into a single currency, the amounts of
those currencies as Components shall be replaced by an amount in such single
currency equal to the sum of the amounts of the consolidated components
currencies expressed in such single currency. If any component currency is
divided into two or more currencies, the amount of that currency as a Component
shall be replaced by amounts of such two or more currencies, each of which
shall have a value at the time of the division equal to the amount of the
former component currency divided by the number of currencies into which that
currency was divided.
All determinations referred to above of the Currency Determination
Agent shall be at its sole discretion (except to the extent expressly provided
herein that any determination is subject to approval by the Company) and, in
the absence of manifest error, shall be conclusive for all purposes and binding
upon the Holders of the Notes and the Trustee and the Currency Determination
Agent shall have no liability therefor.]
7. If an Event of Default with respect to the Notes shall occur
and be continuing, the principal of all of the Notes and the interest accrued
thereon, if any, may be declared due and payable in the manner and with the
effect provided in the Indenture. If the principal of any Original Issue
Discount Note is declared to be due and payable, the amount of principal due
and payable with respect to such Note shall be limited to the sum of the
aggregate principal amount of such Note multiplied by the Issue Price
(expressed as a percentage of the aggregate principal amount) plus the original
issue discount accrued from the date of issue to the date of declaration, which
accrual shall be calculated using the "interest method" (computed in accordance
with generally accepted accounting principles) in effect on the date of
declaration. An Original Issue Discount Note is (i) a Note, including any
zero-coupon Note, which has a stated redemption price at maturity that exceeds
its Issue Price by at
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<PAGE> 17
least 0.25% of its Principal Amount, multiplied by the number of full years
from the Original Issue Date to the Maturity Date for such Note and (ii) any
other Note designated by the Company as issued with an original issue discount
for United States federal income tax purposes.
8. With the consent of the Holders of greater than 50% in
aggregate principal amount of the Outstanding Notes of each series affected by
such supplemental indenture, the Company and the Trustee may enter into an
indenture or indentures supplemental to the Indenture for the purpose of adding
any provisions to or changing the provisions of the Indenture or any supplement
thereto or of modifying in any manner the rights of the Holders of the Notes of
each series under the Indenture; provided, however, that no such supplemental
indenture shall, (a) extend the time or terms of payment of the principal at
maturity of, or the interest on, any such series of Notes, or reduce principal
or premium or the rate of interest, or make the principal or interest or
premium payable in any currency other than that provided in the Notes, without
the consent of the Holder of each Outstanding Note affected thereby, or (b)
without the consent of all of the Holders of any series of Notes then
outstanding, reduce the percentage of Notes of any such series, the Holders of
which are required to consent (i) to any such supplemental indenture, (ii) to
rescind and annul a declaration that the Notes of any series are due and
payable as a result of the occurrence of an Event of Default, (iii) to waive
any past Event of Default under the Indenture and its consequences and (iv) to
waive compliance with certain other provisions contained in the Indenture.
The Company and the Trustee may enter into an indenture or indentures
supplemental to the Indenture without the consent of the Holders for limited
purposes specified in the Indenture.
The Holders of greater than 50% in aggregate principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default or Event of Default under the Indenture and its consequences except a
default in the payment of principal of or premium, if any, or interest on the
Notes. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
9. Notwithstanding any other provision in this Note or the
Indenture, the Holder of this Note shall have the rights, which are absolute
and unconditional, to receive payment of the principal of, premium, if any, and
interest, if any, on such Note
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<PAGE> 18
on the respective Stated Maturities expressed in such Note (or in the case of
redemption or repayment, on the date for redemption or repayment, as the case
may be) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
10. The authorized denominations of Notes [denominated in U.S.
Dollars] will be [U.S.] [$1,000] and any larger amount that is an integral
multiple of [U.S.] $1,000. [The authorized denominations of the Notes
denominated in a currency other than U.S. Dollars will be as set forth on the
face hereof.]
11. Notes to be exchanged shall be surrendered at any office or
agency maintained by the Company for such purpose, and the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor the
Notes which the Holder making the exchange shall be entitled to receive. As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of a Note is registrable at the Debt Security Registrar (as
defined in the Indenture), maintained by the Company for this series
(initially, Chemical Bank). Upon due presentment for registration of transfer
of any Note at any such office or agency, the Company shall execute and
register and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Note or Notes of authorized denominations for
an equal aggregate principal amount. Such new Note or Notes will be delivered
at the office of the Debt Security Registrar in The City of New York, or
mailed, at the request, risk and expense of the transferee or transferees, to
the address or addresses shown in the Debt Security Register for such
transferee or transferees.
All Notes presented to a Debt Security Registrar for registration of
transfer shall be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and such Debt
Security Registrar duly executed by the registered Holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
The Company shall not be required to issue, exchange or register a
transfer of (a) any Notes of any series for a period of 15 days next preceding
the mailing of a notice of redemption of Notes of such series and ending at the
close of business on the day of the mailing of a notice of redemption of Notes
of such series so selected for redemption, or (b) any Notes selected, called or
being called for redemption except, in the case of any
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<PAGE> 19
Notes to be redeemed in part, the portion thereof not so to be redeemed.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name a Note is registered as the owner hereof for all purposes
whether or not such Note be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
12. Certain of the Company's obligations under the Indenture with
respect to Notes of any series may be terminated if the Company irrevocably
deposits with the Trustee money or eligible instruments sufficient to pay and
discharge the entire indebtedness on all Notes of such series, as described in
the Indenture.
13. Unless otherwise defined herein, all terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
14. The Indenture, the Notes and any coupons pertaining hereto
shall be construed in accordance with and governed by the laws of the State of
New York.
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<PAGE> 20
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion hereof specified below) pursuant to its
terms at a price equal to the applicable Repayment Price thereof together with
interest to the Repayment Date, to the undersigned at ________________________
______________________________________________________________________________
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the Holder elects to have repaid
; and specify the denomination or denominations (which shall be
in authorized denominations) of the Notes to be issued to the Holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Date:__________________________________________________________________________
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<PAGE> 21
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ( THE "DEPOSITORY"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITORY OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY
PAYMENT IS MADE TO THE NOMINEE OF THE DEPOSITORY OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE
DEPOSITORY, HAS AN INTEREST HEREIN.]
REGISTERED REGISTERED
JOHNSON CONTROLS, INC.
MEDIUM-TERM NOTE, SERIES C
No. R-1 CUSIP
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE DESIGNATED METHOD) BELOW WILL
BE COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX
ORIGINAL ISSUE DISCOUNT ("OID") RULES.
% FIXED RATE NOTE
Original Issue Date: Principal Amount:
Interest Accrual Date: Maturity Date:
Issue Price: Interest Payment Period:
Initial Redemption Date(s): Interest Payment Dates:
Initial Redemption Price(s): Total Amount of OID:
Repayment Date(s): Yield to Maturity:
Repayment Price(s): Initial Accrual
Period OID:
[Face Amount Currency:] [Designated Exchange
Rate:]
[Optional Payment Currency:] [Optional Exchange Rate:]
[Note: Bracketed material shall be included only if applicable. All references
to foreign currencies shall be deleted from any Note that is held by Depository
Trust Company as a book-entry note.]
<PAGE> 22
[Option to Elect Payment in Specified Currency (Only applicable if Specified
Currency is other than U.S. Dollars):
[ ] Yes [ ] No
Authorized Denominations (Only applicable if Specified Currency is other than
U.S. Dollars):]
Johnson Controls, Inc., a Wisconsin corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
or registered assigns, the principal sum of
[Specified Currency] on the "Maturity Date," as set forth above, and to
pay interest thereon as described on the reverse hereof.
The principal of (and premium, if any) and interest on this Note are
payable by the Company in such coin or currency specified above as at the time
of payment shall be legal tender for the payment of public and private debts
(the "Specified Currency"). [If the Specified Currency is other than U.S.
Dollars, the Company will arrange to have all such payments converted into U.S.
Dollars in the manner described on the reverse hereof. Notwithstanding the
foregoing, the Holder hereof may, if so indicated above, elect to receive all
payments in respect hereof in the Specified Currency by delivery of a written
request to the Paying Agent located in The City of New York (initially,
Chemical Bank) not later than fifteen calendar days prior to the applicable
payment date. Such election will remain in effect until revoked by written
notice to such Paying Agent received not later than fifteen calendar days prior
to the applicable payment date.] [This note is a "Dual Currency Note" and the
Company has a one-time option, exercisable on a date or dates specified (each
an "Option Election Date") in whole, but not in part, with respect to all Dual
Currency Notes issued on the same day and having the same terms, of making all
payments of principal, premium, if any, and interest after the exercise of such
option, whether at maturity or otherwise (which payments would otherwise be
made in the currency in which such Note is denominated (the "Face Amount
Currency")), in the alternative currency for payment (the "Optional Payment
Currency"). The exchange rate designated for such issuance (the "Designated
Exchange Rate") will be a fixed exchange rate used for converting amounts
denominated in the Face Amount Currency into amounts denominated in the
Optional Payment Currency.]
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<PAGE> 23
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, Johnson Controls, Inc. has caused this Note to be
duly executed under its corporate seal.
Dated:
----------------------
JOHNSON CONTROLS, INC.
(Seal)
By:
------------------------------
[Chairman, President, a Vice
President or Treasurer]
ATTEST:
--------------------------
[Secretary or Assistant
Secretary]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein, described in
the within-mentioned Indenture.
CHEMICAL BANK DELAWARE
as Trustee
By:
------------------------------
Authorized Officer
Or:
CHEMICAL BANK DELAWARE
as Trustee
By: CHEMICAL BANK
as Authenticating Agent
By:
-------------------------
Authorized Signatory
-3-
<PAGE> 24
(REVERSE OF REGISTERED NOTE)
JOHNSON CONTROLS, INC.
MEDIUM-TERM NOTE, SERIES C
1. This Note is one of a duly authorized issue of debentures,
notes or other evidences of indebtedness (hereinafter called the "Debt
Securities") of the Company of the series hereinafter specified, all such
securities issued and to be issued under an Indenture dated as of February 22,
1995, between the Company and Chemical Bank Delaware, as Trustee (herein called
the "Indenture"), to which Indenture and all other indentures supplemental
thereto reference is hereby made for a statement of the rights and limitations
of rights thereunder of the Holders of the Debt Securities and of the rights,
obligations, duties and immunities of the Trustee for each series of Debt
Securities and of the Company, and the terms upon which the Debt Securities are
and are to be authenticated and delivered.
As provided in the Indenture, the Debt Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, may be
issued in different denominations, may be issued in different currencies, may
be issued in global form, may be issuable upon the exercise of warrants, if
any, may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided or permitted.
This Note is one of a series of the Debt Securities designated therein
as Medium-Term Notes, Series C (the "Notes"). The Notes of this series may be
issued at various times with different maturity dates and different principal
repayment provisions, may bear interest at different rates, may be payable in
different currencies and may otherwise vary, all as provided in the Indenture.
2. A. The Regular Record Date with respect to any Interest
Payment Date (as defined below) shall be the date 15 calendar days immediately
preceding such Interest Payment Date, whether or not such date shall be a
Business Day. Interest which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall, unless otherwise provided, be
paid to the person in whose name the Note is registered at the close of
business on the Regular Record Date for such Interest; provided, however, that
interest payable on the Interest Payment Date occurring at Maturity will be to
the person to whom
-4-
<PAGE> 25
principal shall be payable; provided, further, that the first payment of
interest on any Note with an Original Issue Date between a Regular Record Date
and an Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the registered owner on
such next succeeding Regular Record Date. Notwithstanding the foregoing, any
interest that is payable but not punctually paid or duly provided for on any
Interest Payment Date shall forthwith cease to be payable to the registered
holder thereof on such Regular Record Date, and (i) may be paid to the person
in whose name such Note is registered on the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof having been given to the Holder of such Note not less
than ten days prior to such Special Record Date, or (ii) may be paid at any
time and in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debt Securities of that series may be
listed, as more fully provided in the Indenture. "Business Day" means any day,
other than a Saturday or Sunday, that meets each of the following applicable
requirements: the day is (a) not a day on which banking institutions are
authorized or required by law or regulation to be closed in The City of New
York, [(b) if this Note is denominated in a Specified Currency other than U.S.
Dollars, (i) not a day on which banking institutions are authorized or required
by law or regulation to close in the financial center of the country issuing
the Specified Currency (which in the case of ECU shall be London and Luxembourg
City, Luxembourg) and (ii) a day on which banking institutions in such
financial center are carrying out transactions in such Specified Currency, and]
(c) with respect to a LIBOR Note, a London Banking Day. "London Banking Day"
means any day on which dealings in deposits in U.S. Dollars are transacted in
the London interbank market. In connection with any calculations, all
percentages will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point being rounded upwards and all currency [or currency unit]
amounts used and resulting from such calculations on the Notes will be rounded
to the nearest one-hundredth of a unit (with .005 of a unit being rounded
upwards).
B. The Company promises to pay interest on the principal amount
at the rate per annum shown on the face hereof until the principal amount
hereof is paid or duly made available for payment. Unless otherwise provided
on the face hereof, the Company will pay interest semiannually on June 1 and
December 1 (each an "Interest Payment Date"), commencing with the Interest
Payment Date immediately following the Original Issue Date shown on the face
hereof and at Maturity. Interest will accrue from and including the most
recent Interest Payment Date or, if no interest has been paid or duly provided
for, from and including
-5-
<PAGE> 26
the Original Issue Date on the face hereof, to, but excluding the Interest
Payment Date. The amount of such interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
3. Payments [in U.S. Dollars] of interest (other than interest
payable at Stated Maturity or upon earlier redemption or repayment) will be
made by mailing a check to the Holder at the address of the Holder appearing on
the Debt Security Register (as defined in the Indenture) on the applicable
Record Date. [Notwithstanding the foregoing, a Holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes of like tenor and terms (or a
holder of the equivalent thereof in a Specified Currency other than U.S.
Dollars as determined by the Currency Determination Agent on the basis of the
Market Exchange Rate (as defined below)) shall be entitled to receive such
payments in U.S. Dollars by wire transfer of immediately available funds, but
only if appropriate payment instructions have been received in writing by the
Company's Paying Agent not less than 15 days prior to the applicable Interest
Payment Date. Simultaneously with any election by the Holder hereof to receive
payments in a Specified Currency other than U.S. Dollars (by written request to
the Paying Agent as provided above), such Holder shall provide appropriate
payment instructions to such Paying Agent and all such payments will be made in
immediately available funds to an account maintained by the payee with a bank
located outside the United States.] Principal and any premium and interest
payable at Stated Maturity or upon earlier redemption or repayment will be paid
upon surrender of such Note at the office of the Paying Agent in the City of
New York or at such other place or agency as the Company may designate (i) in
immediately available funds or (ii) if appropriate payment instructions have
been received in writing by the Company's Paying Agent not less than 15 days,
or such lesser time as is acceptable to the Paying Agent, prior to the
applicable maturity, redemption or repayment date, by electronic transfer of
immediately available funds.
4. If specified on the face hereof, this Note may be redeemed, as
a whole or from time to time in part, at the option of the Company, on not less
than 30 nor more than 45 days' prior notice given as provided in the Indenture,
on any Redemption Date(s) and at the related Redemption Price(s) set forth on
the face hereof. If less than all the Outstanding Notes of any series are to
be redeemed, the Company shall give the Trustee notice at least 45 days in
advance of the date fixed for redemption as to the aggregate principal amount
of Outstanding Notes to be redeemed. Outstanding Notes may be redeemed in part
in multiples equal to the minimum authorized denomination for Outstanding Notes
of such Series or any multiple thereof. Thereupon the Trustee shall select, in
such manner as in its sole discretion it shall deem appropriate and fair, the
Outstanding
-6-
<PAGE> 27
Notes or portions thereof to be redeemed, and shall as promptly as practicable
notify the Company of the Outstanding Notes or portions thereof so selected.
In the event of redemption of this Note in part only, a new Note or Notes of
this series of like tenor or terms for the unredeemed portion hereof will be
issued to the Holder hereof upon the cancellation hereof.
5. If specified on the face hereof, this Note will be subject to
repayment at the option of the Holder hereof on the Repayment Date(s) and at
the Repayment Price(s) indicated on the face hereof. If no such Repayment Date
is set forth on the face hereof, this Note may not be so repaid at the option
of the Holder hereof prior to Stated Maturity. On each Repayment Date, if any,
this Note shall be repayable in whole or in part at the option of the Holder
hereof at the applicable Repayment Price set forth on the face hereof, together
with interest thereon to the date of repayment. For this Note to be repaid in
whole or in part at the option of the Holder hereof, the Paying Agent in The
City of New York must receive not less than 30 or more than 45 days prior to
the Repayment Date (i) the Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a
trust company in the United States of America setting forth the name of the
Holder of the Note, the principal amount of the Note, the certificate number of
the Note or a description of the Note's tenor or terms, the principal amount of
the Note to be prepaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Note to be prepaid with the form
entitled "Option to Elect Repayment" on the reverse of the Note duly completed
will be received by such Paying Agent no later than five Business Days after
the date of such telegram, telex, facsimile transmission or letter and such
Note and form duly completed are received by such Paying Agent by such fifth
Business Day. Exercise of such repayment option shall be irrevocable. Such
option may be exercised by the Holder for less than that entire principal
amount provided that the principal amount remaining outstanding after repayment
is an authorized denomination.
[6. If the Specified Currency is other than U.S. Dollars, unless
the Holder has elected otherwise, payment in respect of this Note shall be made
in U.S. Dollars based upon the Exchange Rate as determined by the Currency
Determination Agent (initially, Chemical Bank) appointed by the Company for
such purpose based on the highest firm bid quotation for U.S. Dollars received
by such Currency Determination Agent at approximately 11:00 A.M. New York City
time on the second Business Day preceding the applicable payment date (or if no
such rate is quoted on such date the last date on which such rate was quoted),
-7-
<PAGE> 28
from three recognized foreign exchange dealers in The City of New York selected
by the Currency Determination Agent and approved by the Company (one of which
may be the Currency Determination Agent) for the purchase by the quoting dealer
for settlement on such payment date of the aggregate amount of the Specified
Currency payable on such payment date in respect of all Notes denominated in
such Specified Currency. All currency exchange costs will be borne by the
Holders of such Notes by deductions from such payments. If no such bid
quotations are available, payments will be made in the Specified Currency
unless such Specified Currency is unavailable due to the imposition of exchange
controls or to other circumstances beyond the Company's control, in which case
the Company will be entitled to make payments in respect hereof in U.S. Dollars
as provided below.
Except as set forth below, if payment on a Note is required to be made
in a Specified Currency other than U.S. Dollars and such currency is
unavailable due to the imposition of exchange controls or to other
circumstances beyond the Company's control or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then all payments due on that due date with respect to such Note
shall be made in U.S. Dollars. The amounts so payable on any date in such
Specified Currency shall be converted into U.S. Dollars at a rate determined by
the Currency Determination Agent on the basis of the most recently available
noon buying rate for cable transfers in The City of New York as determined by
the Federal Reserve Bank of New York (the "Market Exchange Rate").
If payment on a Note is required to be made in ECU and ECU is
unavailable due to the imposition of exchange controls or to other
circumstances beyond the Company's control or is no longer used in the European
monetary system, then all payments due on that due date with respect to such
Note shall be made in U.S. Dollars. The amount so payable on any Date in ECU
shall be converted into U.S. Dollars at a rate determined by the Currency
Determination Agent, as of the second Business Day prior to the date on which
such payment is due on the following basis.
The component currencies of the ECU for this purpose (the
"Components") shall be the currency amounts which were components of the ECU as
of the last date on which the ECU was used in the European monetary system.
The equivalent of the ECU in U.S. Dollars shall be calculated by aggregating
the U.S. Dollar equivalents of the Components.
The U.S. Dollar equivalent of each of the Components shall be
determined by the Currency Determination Agent on the basis of the most
recently available Market Exchange Rate for such component.
-8-
<PAGE> 29
If the official unit of any component currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
shall be divided or multiplied in the same proportion. If two or more
component currencies are consolidated into a single currency, the amounts of
those currencies as Components shall be replaced by an amount in such single
currency equal to the sum of the amounts of the consolidated components
currencies expressed in such single currency. If any component currency is
divided into two or more currencies, the amount of that currency as a Component
shall be replaced by amounts of such two or more currencies, each of which
shall have a value at the time of the division equal to the amount of the
former component currency divided by the number of currencies into which that
currency was divided.
All determinations referred to above of the Currency Determination
Agent shall be at its sole discretion (except to the extent expressly provided
herein that any determination is subject to approval by the Company) and, in
the absence of manifest error, shall be conclusive for all purposes and binding
upon the Holders of the Notes and the Trustee and the Currency Determination
Agent shall have no liability therefor.]
7. If an Event of Default with respect to the Notes shall occur
and be continuing, the principal of all of the Notes and the interest accrued
thereon, if any, may be declared due and payable in the manner and with the
effect provided in the Indenture. If the principal of any Original Issue
Discount Note is declared to be due and payable, the amount of principal due
and payable with respect to such Note shall be limited to the sum of the
aggregate principal amount of such Note multiplied by the Issue Price
(expressed as a percentage of the aggregate principal amount) plus the original
issue discount accrued from the date of issue to the date of declaration, which
accrual shall be calculated using the "interest method" (computed in accordance
with generally accepted accounting principles) in effect on the date of
declaration. An Original Issue Discount Note is (i) a Note, including any
zero-coupon Note, which has a stated redemption price at maturity that exceeds
its Issue Price by at least 0.25% of its Principal Amount, multiplied by the
number of full years from the Original Issue Date to the Maturity Date for such
Note and (ii) any other Note designated by the Company as issued with an
original issue discount for United States federal income tax purposes.
8. With the consent of the Holders of greater than 50% in
aggregate principal amount of the Outstanding Notes of each series affected by
such supplemental indenture, the Company and the Trustee may enter into an
indenture or indentures supplemental to the Indenture for the purpose of adding
any provisions to or changing the provisions of the Indenture or any
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<PAGE> 30
supplement thereto or of modifying in any manner the rights of the Holders of
the Notes of each series under the Indenture; provided, however, that no such
supplemental indenture shall, (a) extend the time or terms of payment of the
principal at maturity of, or the interest on, any such series of Notes, or
reduce principal or premium or the rate of interest, or make the principal or
interest or premium payable in any currency other than that provided in the
Notes, without the consent of the Holder of each Outstanding Note affected
thereby, or (b) without the consent of all of the Holders of any series of
Notes then outstanding, reduce the percentage of Notes of any such series, the
Holders of which are required to consent (i) to any such supplemental
indenture, (ii) to rescind and annul a declaration that the Notes of any series
are due and payable as a result of the occurrence of an Event of Default, (iii)
to waive any past Event of Default under the Indenture and its consequences and
(iv) to waive compliance with certain other provisions contained in the
Indenture.
The Company and the Trustee may enter into an indenture or indentures
supplemental to the Indenture without the consent of the Holders for limited
purposes specified in the Indenture.
The Holders of greater than 50% in aggregate principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default or Event of Default under the Indenture and its consequences except a
default in the payment of principal of or premium, if any, or interest on the
Notes. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
9. Notwithstanding any other provision in this Note or the
Indenture, the Holder of this Note shall have the rights, which are absolute
and unconditional, to receive payment of the principal of, premium, if any, and
interest, if any, on such Note on the respective Stated Maturities expressed in
such Note (or in the case of redemption or repayment, on the date for
redemption or repayment, as the case may be) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
10. The authorized denominations of Notes [denominated in U.S.
Dollars] will be [U.S.] [$1,000] and any larger amount that is an integral
multiple of [U.S.] $1,000. [The authorized denominations of the Notes
denominated in a currency other than U.S. Dollars will be as set forth on the
face hereof.]
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<PAGE> 31
11. Notes to be exchanged shall be surrendered at any office or
agency maintained by the Company for such purpose, and the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor the
Notes which the Holder making the exchange shall be entitled to receive. As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of a Note is registrable at the Debt Security Registrar (as
defined in the Indenture), maintained by the Company for this series
(initially, Chemical Bank). Upon due presentment for registration of transfer
of any Note at any such office or agency, the Company shall execute and
register and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Note or Notes of authorized denominations for
an equal aggregate principal amount. Such new Note or Notes will be delivered
at the office of the Debt Security Registrar in The City of New York, or
mailed, at the request, risk and expense of the transferee or transferees, to
the address or addresses shown in the Debt Security Register for such
transferee or transferees.
All Notes presented to a Debt Security Registrar for registration of
transfer shall be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and such Debt
Security Registrar duly executed by the registered Holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
The Company shall not be required to issue, exchange or register a
transfer of (a) any Notes of any series for a period of 15 days next preceding
the mailing of a notice of redemption of Notes of such series and ending at the
close of business on the day of the mailing of a notice of redemption of Notes
of such series so selected for redemption, or (b) any Notes selected, called or
being called for redemption except, in the case of any Notes to be redeemed in
part, the portion thereof not so to be redeemed.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name a Note is registered as the owner hereof for all purposes
whether or not such Note be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
12. Certain of the Company's obligations under the Indenture with
respect to Notes of any series may be terminated
-11-
<PAGE> 32
if the Company irrevocably deposits with the Trustee money or eligible
instruments sufficient to pay and discharge the entire indebtedness on all
Notes of such series, as described in the Indenture.
13. Unless otherwise defined herein, all terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
14. The Indenture, the Notes and any coupons pertaining hereto
shall be construed in accordance with and governed by the laws of the State of
New York.
-12-
<PAGE> 33
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion hereof specified below) pursuant to its
terms at a price equal to the applicable Repayment Price thereof together with
interest to the Repayment Date, to the undersigned at _______________________
_____________________________________________________________________________
_____________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the Holder elects to have repaid
; and specify the denomination or denominations (which shall be
in authorized denominations) of the Notes to be issued to the Holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Date:_____________________________ _______________________________________
-13-
<PAGE> 1
EXHIBIT 4.3
Unless this certificate is presented by an authorized representative
of the Depository Trust Company, a New York Corporation (the "Depository"), to
the Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of the Depository (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
JOHNSON CONTROLS, INC.
7.70% DEBENTURE DUE 2015
CUSIP 478366AE7
No. R-1 US$125,000,000
JOHNSON CONTROLS, INC., a corporation duly organized and existing
under the laws of the State of Wisconsin (the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assignees,
the principal sum of One Hundred Twenty-Five Million Dollars ($125,000,000) on
March 1, 2015, and to pay interest thereon from March 2, 1995, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on March 1 and September 1 of each year, commencing
September 1, 1995, at the rate of 7.70% per annum, until the principal hereof
becomes due and payable, and at such rate on any overdue principal and (to the
extent that the payment of such interest shall be legally enforceable) on any
overdue installment of interest. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this 7.70% Debenture Due March
1, 2015 (this "Debenture," and all of the Debentures collectively referred to
herein as the "Debentures") (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the February 15 or August 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date;
provided, however, that interest payable on the Interest Payment Date occurring
at maturity will be paid to the person to whom principal shall be payable. Any
such interest not punctually paid or duly provided for on any Interest Payment
Date shall forthwith cease to be payable to the registered Holder on such
Regular Record Date by virtue of his having been such Holder, and may either be
paid to the Person in whose name this Debenture (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Debentures not more than 15 days and not
less than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payments of interest will be made by wire transfer of immediately
available funds. Principal and any premium and interest payable at Maturity
will be paid in immediately available funds upon surrender of such Debenture at
the office of a Paying Agent in The City of New York or at such other office or
agency as the Company may designate.
Unless the certificate of authentication herein has been duly
executed by the Trustee referred to herein by manual signature, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE> 2
This Debenture is one of a duly authorized issue of securities of the
Company (the "Debt Securities"), issued or to be issued in one or more series
under an indenture, dated as of February 22, 1995 (the "Indenture"), between
the Company and Chemical Bank Delaware, a Delaware banking corporation, as
trustee (the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Debt Securities and of the terms upon which the Debt Securities
are, and are to be, authenticated and delivered. This Debenture is one of the
series designated on the face hereof limited in aggregate principal amount to
$125,000,000.
The Debentures will not be redeemable prior to maturity at the option
of the Company. The Debentures are redeemable, in whole or in part, at the
option of the registered holders thereof, on March 1, 2005 (the "Redemption
Date"), at a price equal to the principal amount outstanding plus all accrued
and unpaid interest thereon to the Redemption Date.
In order for a holder to exercise this option, the Company must
receive at the office of its paying agent in New York, New York, during the
period beginning on January 1, 2005 and ending at 5:00 P.M. (New York City
time) on January 31, 2005 (or, if January 31, 2005 is not a Business Day, the
next succeeding Business Day), the Debenture with the form entitled "Option to
Require Redemption on March 1, 2005" set forth below duly completed. Any such
notice received by the Company during the period beginning on January 1, 2005
and ending at 5:00 P.M. (New York City time) on January 31, 2005 shall be
irrevocable. The redemption option may be exercised by the holder of a
Debenture for less than the entire principal amount of the Debentures held by
such holder, so long as the principal amount that is to be redeemed is equal to
$1,000 or an integral multiple of $1,000.
Failure by the Company to repurchase the Debentures when required as
described in the preceding paragraph will result in an Event of Default under
the Indenture.
All questions regarding the validity, form, eligibility (including
time of receipt) and acceptance of any Debenture for redemption will be
determined by the Company, whose determination will be final and binding.
The Company shall have no obligation to redeem or purchase the
Debentures pursuant to any sinking fund or analogous provision.
If an Event of Default with respect to the Debentures shall have
occurred and be continuing, the principal of all the Debentures may be declared
due and payable in the manner and with the effect provided in the Indenture.
With the consent of the Holders of greater than 50% in aggregate
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, the Company and the Trustee may enter into an
indenture or indentures supplemental to the Indenture for the purpose of adding
any provisions to or changing the provisions of the Indenture or any supplement
thereto or of modifying in any manner the rights of the Holders of the Debt
Securities of each series under the Indenture; provided, however, that no such
supplemental indenture shall (a) extend the time or terms of payment of the
principal at maturity of, or the interest on, any such series of Debt
Securities, or reduce principal or premium or the rate of interest, without the
consent of the Holder thereof, or (b) without the consent of all of the Holders
of any series of Debt Securities then outstanding, reduce the percentage of
Debt Securities of any such series, the Holders of which are required to
consent (i) to any such supplemental indenture, (ii) to rescind and annul a
declaration that the Debt Securities of any series are due and payable as a
result of the occurrence of an Event of Default, (iii) to waive any past Event
of Default under the Indenture and its consequences and (iv) to waive
compliance with certain other provisions contained in the Indenture.
The Company and the Trustee may enter into an indenture or indentures
supplemental to the Indenture without the consent of the Holders for limited
purposes specified in the Indenture.
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<PAGE> 3
The Holders of greater than 50% in aggregate principal amount of the
Outstanding Debentures may on behalf of the Holders of all the Debentures waive
any past default or Event of Default under the Indenture and its consequences
except a default in the payment of principal of or premium, if any, or interest
on the Debentures.
Holders of Debentures may not enforce their rights pursuant to the
Indenture or the Debentures except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Debenture or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of (and premium, if any) and interest on
this Debenture at the times, place and rate, and in the coin or currency,
herein prescribed.
The Debentures are issuable in registered form without coupons in
denominations of U.S.$1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Debentures
are exchangeable for a like aggregate principal amount of Debentures that are
of other authorized denominations.
Debentures to be exchanged shall be surrendered at any office or
agency maintained by the Company for such purpose, and the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor the
Debentures which the Holder making the exchange shall be entitled to receive.
Upon due presentment for registration of transfer of any Debenture at any such
office or agency, the Company shall execute and register and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Debenture for an equal aggregate amount. Registration or registration of
transfer of any Debenture by the Debt Security Registrar (initially Chemical
Bank) in the registry books maintained by such Debt Security Registrar in the
City of New York, and delivery of such Debenture, duly authenticated, shall be
deemed to complete the registration or registration of transfer of such
Debenture.
The Company shall not be required to issue, exchange or register the
transfer of any Debenture once it has been presented for redemption, as set
forth above, except in the case of any Debenture to be redeemed in part, the
portion thereof not so to be redeemed.
No service charge shall be made for any exchange or registration of
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. Prior to due
presentment of a Debenture for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the person in
whose name a Debenture is registered as the owner for all purposes whether or
not such Debenture be overdue and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
Certain of the Company's obligations under the Indenture with respect
to the Debentures may be terminated if the Company irrevocably deposits with
the Trustee money or eligible instruments sufficient to pay and discharge the
entire indebtedness on all of the Debentures, as described in the Indenture.
This Debenture is in the form of a Global Security as provided in the
Indenture. If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository for this Debenture or if at any
time the Depository for the Debentures shall no longer be eligible or in good
standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor
Depository with respect to this Debenture. If a successor Depository for this
Debenture is not appointed by the Company within 90 days after the Company
receives notice or becomes aware of such ineligibility, the Company will issue
Debentures in definitive form in exchange for the Global Security representing
Debentures in an aggregate principal amount equal to the principal amount of
this Debenture in exchange for this Debenture.
No recourse under or upon any obligation, covenant or agreement of
the Indenture, any supplemental indenture, or of any Debenture, or for any
claim based hereon, or otherwise in respect thereof shall be had against
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<PAGE> 4
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or any Subsidiary or of any predecessor or successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liabilities being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly waived and
released.
The Debentures are subject to defeasance at the option of the Company
as provided in the Indenture.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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<PAGE> 5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 2, 1995 JOHNSON CONTROLS, INC.
By: /s/ Stephen A. Roell
--------------------------
[SEAL]
Attest:
By: /s/ Ben C. M. Bastianen
--------------------------
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: March 2, 1995
CHEMICAL BANK DELAWARE CHEMICAL BANK DELAWARE
As Trustee As Trustee
OR
By: By: CHEMICAL BANK
------------------------ As Authenticating Agent
Authorized Officer
By: /s/ Lisa Price
--------------------------
Authorized Signatory
OPTION TO REQUIRE REDEMPTION ON MARCH 1, 2005
If you elect to have this Debenture purchased by the Company on March 1, 2005,
check the box: [ ]
If you elect to have only part of this Debenture purchased by the Company on
March 1, 2005, state the amount (multiples of $1000 only): $____________
Date: Your Signature:
--------------- ---------------------------------------
(Sign exactly as your name appears
on the other side of this Debenture)
Signature Guarantee:
- ----------------------------------
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<PAGE> 6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ............Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
...................................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
- -------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing attorney to transfer said Security on
the books of the Company, with full power of substitution in the premises.
Dated:
---------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
6
