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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 2, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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KIMBERLY-CLARK CORPORATION
(Exact name of registrant as specified in its charter)
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<TABLE>
<C> <C>
DELAWARE 39-0394230
(State of incorporation) (I.R.S. Employer Identification No.)
</TABLE>
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(972) 281-1200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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O. GEORGE EVERBACH
SENIOR VICE PRESIDENT --
LAW AND GOVERNMENT AFFAIRS
KIMBERLY-CLARK CORPORATION
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(972) 281-1200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
ALLAN G. SPERLING
CLEARY, GOTTLIEB, STEEN & HAMILTON
1 LIBERTY PLAZA
NEW YORK, NEW YORK 10006
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities............... $500,000,000 100% $500,000,000 $147,500
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</TABLE>
(1) Estimated solely for the purpose of determining the registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PRELIMINARY PROSPECTUS SUBJECT TO COMPLETION
DATED FEBRUARY 2, 1998
[KIMBERLY CLARK LOGO] Corporation
Debt Securities
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Kimberly-Clark Corporation (the "Corporation" or "Kimberly-Clark") from
time to time may offer and sell debt securities consisting of debentures, notes
and/or other unsecured evidences of indebtedness in one or more series not to
exceed $500,000,000 in aggregate principal amount (the "Debt Securities")
denominated in United States dollars or any other currency. The Debt Securities
may be offered as separate series in amounts, at prices and on terms to be
determined at the time of sale. The accompanying Prospectus Supplement (the
"Prospectus Supplement") sets forth with regard to the series of Debt Securities
in respect of which this Prospectus is being delivered (the "Offered Debt
Securities") the title, aggregate principal amount, denominations, maturity,
interest rate, if any (which may be fixed or variable), time of payment of any
interest, any terms for redemption at the option of the Corporation or the
holder, any terms for sinking fund payments, any listing on a securities
exchange and the initial public offering price and other terms in connection
with the offering and sale of such Offered Debt Securities.
The Corporation may sell Debt Securities to or through underwriters or
dealers, and also may sell Debt Securities directly or indirectly to other
purchasers or through agents. Such underwriters may include Salomon Brothers Inc
and Morgan Stanley & Co. Incorporated, or may be a group of underwriters
represented by firms including one or both of such firms. Such firms may also
act as agents. The Prospectus Supplement sets forth the names of any
underwriters or agents involved in the sale of the Offered Debt Securities in
respect of which this Prospectus is being delivered, the principal amounts, if
any, to be purchased by underwriters and the compensation, if any, of such
underwriters or agents and any applicable commissions or discounts.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS FEBRUARY 2, 1998.
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CERTAIN PERSONS PARTICIPATING IN THE OFFERING OF THE DEBT SECURITIES MAY
ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF
THE DEBT SECURITIES OR ANY SECURITIES THE PRICES OF WHICH MAY BE USED TO
DETERMINE PAYMENTS ON THE DEBT SECURITIES. SPECIFICALLY, THE UNDERWRITERS OR
AGENTS SPECIFIED IN THE RELEVANT PROSPECTUS SUPPLEMENT MAY OVERALLOT IN
CONNECTION WITH THE OFFERING, AND MAY BID FOR AND PURCHASE THE DEBT SECURITIES
OR ANY SECURITIES THE PRICES OF WHICH MAY BE USED TO DETERMINE PAYMENTS ON THE
DEBT SECURITIES IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION" IN THIS PROSPECTUS AND "PLAN OF DISTRIBUTION" OR
"UNDERWRITING" IN THE RELEVANT PROSPECTUS SUPPLEMENT.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE CORPORATION OR ANY AGENT, UNDERWRITER OR DEALER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR ANY OFFER
TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY
CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCE, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE CORPORATION SINCE THE DATE HEREOF OR THAT INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Reports, proxy and information statements and other
information filed by the Corporation can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Room 3190, Suite 1400, 500 West Madison Street, Chicago,
Illinois 60661-2511; and 13th Floor, 7 World Trade Center, New York, New York
10048. Copies of such material can be obtained at prescribed rates from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such reports, proxy and information statements and other
information concerning the Corporation can also be inspected at the offices of
the New York Stock Exchange, the Chicago Stock Exchange, and the Pacific Stock
Exchange, on which certain of the Corporation's securities are listed. Such
materials also may be accessed electronically by means of the Commission's web
site at http://www.sec.gov.
The Corporation has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is hereby made to the Registration Statement.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed with the Commission by the
Corporation under the Exchange Act are incorporated herein by reference:
(a) the Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996, including those portions of the Corporation's annual
report to its stockholders for the year ended December 31, 1996 and the
Corporation's 1997 proxy statement incorporated by reference in such Annual
Report on Form 10-K;
(b) the Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997; and
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(c) the Corporation's Current Reports on Form 8-K dated February 20,
1997, February 25, 1997, April 24, 1997, October 30, 1997, November 25,
1997 and January 30, 1998.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents.
Any statement contained herein, in the Prospectus Supplement or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of the Registration Statement
and this Prospectus to the extent that a statement contained herein, in the
Prospectus Supplement or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
The Corporation will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus has been delivered, upon the
written or oral request of such person, a copy of any or all of the information
referred to above which has been or may be incorporated in this Prospectus by
reference (not including exhibits to the information that is incorporated by
reference unless such exhibits are specifically incorporated by reference into
the information that the Prospectus incorporates). Written requests or requests
by telephone for such copies should be directed to Donald M. Crook, Secretary,
Kimberly-Clark Corporation, P.O. Box 619100, Dallas, Texas 75261-9100 (telephone
972-281-1200).
THE CORPORATION
Kimberly-Clark is engaged principally in the manufacturing and marketing
throughout the world of a wide range of products for personal, business and
industrial uses. Most of these products are made from natural and synthetic
fibers using advanced technologies in absorbency, fibers and nonwovens.
Kimberly-Clark's businesses are separated into three segments: Personal Care
Products; Tissue-Based Products; and Newsprint, Paper and Other. Consolidated
net sales of its products and services totaled approximately $13 billion in
1996.
Personal Care Products includes disposable diapers, training and youth
pants; feminine care and adult incontinence care products; wet wipes; health
care products; and related products. Products in this business segment are for
household use and are sold under a variety of well-known brand names, including
Huggies, Pull-Ups, GoodNites, Kotex, New Freedom, Lightdays, Depend and Poise.
Tissue-Based Products include facial and bathroom tissue, paper towels, paper
napkins and wipers for household and away-from-home use; pulp; and related
products. Products in this business segment are sold under the Kleenex, Scott,
Kleenex Cottonelle, Kleenex Viva, Kimwipes, Wypall and other brand names.
Products for household use are sold directly and through wholesalers to
supermarkets, mass merchandisers, drugstores, warehouse clubs, home health care,
variety and department stores and other retail outlets. Health care products are
sold to distributors, converters and end-users. Products for away-from-home use
are sold through distributors and directly to manufacturing, lodging, office
building, food service and health care establishments and other high volume
public facilities. Newsprint, Paper and Other includes newsprint, printing
papers, premium business and correspondence papers, specialty papers, technical
papers, and related products; and other products and services. Newsprint and
groundwood printing papers are sold directly to newspaper publishers and
commercial printers. Other papers and specialty products in this business
segment are sold directly to users, converters, manufacturers, publishers and
printers, and through paper merchants, brokers, sales agents and other resale
agencies.
On March 27, 1997, Kimberly-Clark sold its Coosa Pines, Alabama pulp and
newsprint operations, and related woodlands, to Alliance Forest Products Inc., a
publicly held Canadian corporation, for approximately $600 million in cash.
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On June 6, 1997, Kimberly-Clark sold its 50.1 percent interest in Scott
Paper Limited, a publicly-traded Canadian company ("SPL"), to Kruger, Inc.
("Kruger") as part of a transaction in which Kruger acquired all of SPL's
outstanding common shares.
On December 18, 1997, the Corporation acquired Tecnol Medical Products,
Inc. ("Tecnol"), a leading maker of disposable face masks and patient care
products. The transaction was accounted for as a purchase and involved the
exchange of approximately 8.7 million shares of Kimberly-Clark common stock for
all outstanding shares of Tecnol common stock.
Kimberly-Clark was incorporated in Delaware in 1928 as the successor to a
business established in 1872. Its principal executive offices are located at 351
Phelps Drive, Irving, Texas 75038 and its telephone number is (972) 281-1200.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the years ended December 31,
1997, 1996, 1995, 1994 and 1993 was 6.39, 9.17, 1.55, 4.51 and 2.64,
respectively. The ratio of earnings to fixed charges includes a pretax
restructuring charge of $701.2 million in 1997, $1,440.0 million in 1995 and
$378.9 million in 1993. Excluding this charge, the ratio of earnings to fixed
charges was 9.32 in 1997, 6.20 in 1995 and 3.77 in 1993.
USE OF PROCEEDS
The net proceeds received by the Corporation from the sale of the Debt
Securities will be used for general corporate purposes. These purposes may
include: reduction of its existing indebtedness; working capital; capital
expenditures; investments in subsidiaries and equity companies; the purchase of
shares of the Corporation's stock; and future acquisitions. Pending use for
these purposes, such proceeds will be invested in short-term securities.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Offered Debt
Securities and the extent, if any, to which such general provisions may not
apply thereto will be described in the Prospectus Supplement relating to such
Offered Debt Securities.
The Debt Securities are to be issued under a First Amended and Restated
Indenture, dated as of March 1, 1988, between the Corporation and Bank of
America National Trust and Savings Association, as Trustee ("BOA"), as amended
by the First Supplemental Indenture, dated as of November 6, 1992, and the
Second Supplemental Indenture, dated as of May 25, 1994, between the Corporation
and BOA (the "Indenture"). Pursuant to an Instrument of Resignation, Appointment
and Acceptance, dated as of December 12, 1995, BOA resigned as Trustee under the
Indenture and The First National Bank of Chicago was appointed as successor
Trustee (the "Trustee") thereunder. The following summaries of certain
provisions of the Debt Securities and the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all of the provisions of the Indenture, including the definitions therein of
certain terms. Whenever particular provisions or defined terms in the Indenture
are referred to herein, such provisions or defined terms are incorporated by
reference herein. Section references used herein are references to the Indenture
and certain defined terms in the Indenture are capitalized herein.
GENERAL
The Debt Securities will be unsecured obligations of the Corporation and
will rank on a parity with all other currently outstanding unsecured and
unsubordinated indebtedness of the Corporation. The Indenture does not limit the
aggregate principal amount of the Debt Securities or of any particular series of
Offered Debt Securities and provides that Debt Securities may be issued
thereunder from time to time in one or more series.
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Reference is made to the Prospectus Supplement relating to the particular
series of Offered Debt Securities offered thereby for the following terms
thereof: (1) the title of the Offered Debt Securities; (2) any limit on the
aggregate principal amount of the Offered Debt Securities; (3) the initial
offering price or prices (expressed as a percentage of the aggregate principal
amount thereof) at which the Offered Debt Securities will be sold; (4) the date
or dates on which the principal of the Offered Debt Securities will be payable;
(5) the rate or rates (which may be fixed or variable) per annum at which the
Offered Debt Securities will bear interest, if any, and the date from which such
interest, if any, will accrue; (6) the date or dates on which such interest, if
any, will be payable and the Regular Record Dates for such Interest Payment
Dates; (7) the obligation, if any, of the Corporation to redeem or purchase the
Offered Debt Securities pursuant to any sinking fund or analogous provisions or
at the option of a Holder, and the periods within, the prices at, and the terms
and conditions upon which the Offered Debt Securities shall be redeemed or
purchased; (8) the date or dates, if any, after which and the price or prices at
which the Offered Debt Securities may, pursuant to any optional redemption
provisions, be redeemed at the option of the Corporation or of the holder
thereof and other detailed terms and provisions of any such optional redemption;
(9) if other than the principal amount thereof, the portion of the principal
amount of the Offered Debt Securities which shall be payable upon declaration of
acceleration of the maturity thereof; (10) the currency of payment of principal
of (and premium, if any) and/or interest on the Offered Debt Securities; (11)
any index used to determine the amounts of payments of principal of (and
premium, if any) and/or interest on the Offered Debt Securities; (12) the right
of the Corporation to defease the Offered Debt Securities or certain restrictive
covenants and certain Events of Default under the Indenture; (13) any issuance
of the Offered Debt Securities in the form of one or more Global Securities and,
in such case, the Depositary therefor; and (14) any Events of Default or other
terms relating to the Offered Debt Securities in addition to those described
herein. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal of and any premium and interest on the Offered Debt Securities will be
payable, and the Offered Debt Securities will be exchangeable and transfers
thereof will be registrable, at the office of the Trustee at One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126, or at the office of First
Chicago Trust Company of New York, 14 Wall Street, 8th Floor -- Window 2, New
York, New York 10005, provided that, at the option of the Corporation, payment
of any interest may be made by check mailed via first-class mail to the address
of the Person entitled thereto as it appears in the Security Register. (Sections
301, 305 and 1002)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities will be issued only in fully registered form without
coupons in denominations of $1,000 or any integral multiple thereof, and no
service charge will be made for any transfer or exchange of such Offered Debt
Securities, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Sections
302 and 305)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
principal amount thereof. Special Federal income tax, accounting and other
considerations applicable thereto will be described under "Original Issue
Discount -- Factors to Consider" in the Prospectus Supplement relating to any
such Original Issue Discount Securities.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the covenants contained in the Indenture and the Offered Debt Securities would
not necessarily afford Holders of the Offered Debt Securities protection in the
event of a highly leveraged or other transaction involving the Corporation which
may adversely affect the Holders of the Offered Debt Securities.
RESTRICTIVE COVENANTS
Liens. The Corporation covenants that it will not, and will not permit any
Restricted Subsidiary to, issue, assume or guarantee any indebtedness for
borrowed money (hereafter called "indebtedness") secured by a mortgage, security
interest, pledge or lien (hereafter called "mortgage") of or upon any Principal
Property, or any shares of capital stock or indebtedness of any Restricted
Subsidiary, whether owned at the date of the Indenture or thereafter acquired,
without effectively providing that the Debt Securities (together with, if the
Corporation shall so determine, any other indebtedness issued, assumed or
guaranteed by the Corporation or
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any Restricted Subsidiary and then existing or thereafter created) shall be
secured by such mortgage equally and ratably with (or, at the option of the
Corporation, prior to) such indebtedness. The foregoing restrictions, however,
shall not apply to (a) mortgages of or upon any property acquired, constructed
or improved by, or of or upon any shares of capital stock or indebtedness
acquired by, the Corporation or any Restricted Subsidiary after the date of the
Indenture to secure indebtedness incurred for the purpose of financing all or
any part of the purchase price of any property, shares of capital stock or
indebtedness or of the cost of any construction or improvements on such
property, which indebtedness is incurred prior to or within 360 days after such
acquisition, completion of such construction or the commencement of the
commercial operation of such property; (b) mortgages of or upon any property,
shares of capital stock or indebtedness existing at the time of acquisition
thereof by the Corporation or any Restricted Subsidiary; (c) mortgages of or
upon property of a corporation existing at the time such corporation is merged
with or into or consolidated with the Corporation or any Restricted Subsidiary
or at the time of a sale or transfer of the properties of a corporation as an
entirety or substantially as an entirety to the Corporation or any Restricted
Subsidiary; (d) mortgages of or upon any property of, or shares of capital stock
or indebtedness of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary; (e) mortgages to secured indebtedness of any
Restricted Subsidiary to the Corporation or another Restricted Subsidiary or to
secure indebtedness of the Corporation to any Restricted Subsidiary; (f)
mortgages in favor of governmental bodies to secure advance or progress payments
pursuant to any contract or statute or to secure indebtedness incurred or
guaranteed to finance or refinance all or any part of the purchase price of the
property, shares of capital stock or indebtedness subject to, or the cost of
constructing or improving the property subject to, such mortgages; and (g)
extensions, renewals or replacements of any mortgage existing on the date of
this Indenture or any mortgage referred to in the foregoing clauses (a) through
(f), inclusive. (Section 1004) For additional information as to mortgages on
property, see "Defeasance and Covenant Defeasance" herein.
Notwithstanding the restrictions outlined above, the Corporation or any
Restricted Subsidiary may, without equally and ratably securing the Debt
Securities, issue, assume or guarantee indebtedness secured by a mortgage not
excepted under clauses (a) through (g) above, if the aggregate amount of such
indebtedness, together with all other indebtedness secured by mortgages not so
excepted and the Attributable Debt existing in respect of Sale and Lease-Back
Transactions (other than Sale and Lease-Back Transactions in respect of which
amounts equal to the Attributable Debt relating to the transactions shall have
been applied, within 360 days after the effective date of the arrangement, to
the prepayment or retirement (other than any mandatory prepayment or retirement)
of long-term indebtedness and Sale and Lease-Back Transactions in which the
property involved would have been permitted to be mortgaged under clause (a) or
(f) above), does not at the time exceed 5% of Consolidated Net Tangible Assets.
(Section 1004)
The sale, mortgage or other transfer of timber in connection with an
arrangement under which the Corporation or any Restricted Subsidiary is
obligated to cut such timber or a portion thereof in order to provide the
transferee with a specified amount of money however determined shall not be
deemed to create indebtedness secured by a mortgage or to constitute a mortgage
securing any indebtedness or to constitute a Sale and Lease-Back Transaction.
(Section 1004)
Sales and Lease-Backs. Sale and Lease-Back Transactions by the Corporation
or any Restricted Subsidiary of any Principal Property are prohibited unless (i)
the Corporation or such Restricted Subsidiary would be entitled, without equally
and ratably securing the Debt Securities, to incur indebtedness secured by a
mortgage on the property to be leased pursuant to clause (a) or (f) under the
subsection Liens above, or (ii) the Corporation or such Restricted Subsidiary
would be entitled, without equally and ratably securing the Debt Securities, to
incur indebtedness secured by a mortgage on such property in an amount at least
equal to the Attributable Debt in respect of the Sale and Lease-Back
Transaction, or (iii) the Corporation shall apply, within 360 days after the
effective date of the arrangement, an amount equal to the Attributable Debt in
respect of the transaction to the prepayment or retirement (other than any
mandatory prepayment or retirement) of long-term indebtedness of the Corporation
or any Restricted Subsidiary. (Section 1005) For additional information as to
Sale and Lease-Back Transactions, see "Defeasance and Covenant Defeasance"
herein.
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Definitions. "Attributable Debt" in respect of a Sale and Lease-Back
Transaction means, as of any particular time, the present value (discounted at
the rate of interest implicit in the lease involved in such Sale and Lease-Back
Transaction, as determined in good faith by the Corporation) of the obligation
of the lessee thereunder for rental payments (excluding, however, any amounts
required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales, maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges) during
the remaining term of such lease (including any period for which such lease has
been extended or may, at the option of the lessor, be extended). (Section 101)
"Consolidated Net Tangible Assets" means, as of any particular time, the
total amount of assets (less applicable reserves) after deducting therefrom (a)
all current liabilities (excluding any thereof which are by their terms
extendible or renewable at the option of the obligor thereon to a time more than
12 months after the time as of which the amount thereof is being computed and
excluding current maturities of long-term indebtedness), and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangible assets, all shown in the audited consolidated balance
sheet of the Corporation and subsidiaries contained in the Corporation's then
most recent annual report to stockholders, except that assets shall include an
amount equal to the Attributable Debt in respect of any Sale and Lease-Back
Transaction not capitalized on such balance sheet. (Section 101)
"Principal Property" means any mill, manufacturing plant, manufacturing
facility or Timberland, located within the United States of America, having a
gross book value in excess of 1% of Consolidated Net Tangible Assets at the time
of determination thereof and owned by the Corporation or any Restricted
Subsidiary, in each case other than (1) any such mill, plant, facility or
Timberland which, in the opinion of the Board of Directors of the Corporation,
is not of material importance to the total business conducted by the Corporation
and its Restricted Subsidiaries taken as a whole, (2) any portion of such a
mill, plant, facility or Timberland similarly found not to be of material
importance to the use or operation thereof or (3) any ores, metals, fossils,
elements, gases, oil, minerals, geothermal resources and rights thereto and any
plant or facility used for the extraction or processing thereof. (Section 101)
"Restricted Subsidiary" means any Subsidiary (a) substantially all of the
property of which is located, or substantially all of the business of which is
carried on, within the United States of America (other than its territories or
possessions and other than Puerto Rico) and (b) which owns a Principal Property;
provided however that any Subsidiary which is principally engaged in financing
operations outside the United States of America or which is principally engaged
in leasing or in financing instalment receivables shall not be a Restricted
Subsidiary. (Section 101)
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Corporation or any Restricted Subsidiary of any
Principal Property, whether owned at the date of the Indenture or thereafter
acquired (except for temporary leases for a term, including any renewal thereof,
of not more than three years and except for leases between the Corporation and
any Restricted Subsidiary, between any Restricted Subsidiary and the Corporation
or between Restricted Subsidiaries), which property has been or is to be sold or
transferred by the Corporation or such Restricted Subsidiary to such Person with
the intention of taking back a lease of such property. (Section 101)
"Subsidiary" means any corporation more than 50% of the outstanding voting
stock of which is at the time owned, directly or indirectly, by the Corporation
and/or one or more of its other Subsidiaries. (Section 101)
"Timberland" means any real property owned by the Corporation or any
Restricted Subsidiary which contains standing timber which is (or upon
completion of a growth cycle then in process is expected to become) of a
commercial quantity and of merchantable quality, excluding, however, any such
real property which at the time of determination is designated by the Board of
Directors of the Corporation as being held primarily for development or sale,
rather than primarily for the production of timber. (Section 101)
7
<PAGE> 9
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities for the particular provisions relating to such Offered
Debt Securities, including any additional restrictive covenants that may be
included in the terms thereof.
CONSOLIDATIONS, MERGERS AND SALES OF ASSETS BY THE CORPORATION
Nothing in the Indenture or in any of the Debt Securities shall prevent any
consolidation of the Corporation with or merger of the Corporation into any
other corporation or shall prevent any sale or transfer of all or substantially
all of the property and assets of the Corporation to any other corporation;
provided, however, and the Corporation covenants and agrees, that any such
consolidation, merger, sale or transfer shall be upon the condition that the due
and punctual payment of the principal of, and premium, if any, and interest on,
all the Debt Securities according to their tenor, and the due and punctual
performance and observance of all the terms, covenants and conditions of the
Indenture to be kept or performed by the Corporation shall, by an indenture
supplemental to the Indenture, executed and delivered to the Trustee, be assumed
by the corporation formed by such consolidation or into which the Corporation
shall have merged, or the corporation which shall have acquired by sale or
transfer all or substantially all of the property and assets of the Corporation.
(Section 801)
If, upon any such consolidation or merger, or upon any such sale or
transfer, any Principal Property of the Corporation or of any Restricted
Subsidiary or any shares of capital stock or indebtedness of any Restricted
Subsidiary, owned immediately prior thereto, would thereupon become subject to
any mortgage, security interest, pledge or lien securing any indebtedness for
borrowed money of, or guaranteed by, such other corporation (other than any
mortgage, security interest, pledge or lien permitted as described in the first
two paragraphs under "Liens" above), the Corporation, prior to such
consolidation, merger, sale or transfer, will by indenture supplemental to the
Indenture secure the due and punctual payment of the principal of, and premium,
if any, and interest on the Debt Securities (together with, if the Corporation
shall so determine, any other indebtedness of, or guaranteed by, the Corporation
or any Restricted Subsidiary and then existing or thereafter created) equally
and ratably with (or, at the option of the Corporation, prior to) the
indebtedness secured by such mortgage, security interest, pledge or lien.
(Section 802) For additional information as to liens on property in certain
events, see "Defeasance and Covenant Defeasance" herein.
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture with respect to
Debt Securities of any series: (a) default in payment of principal of or
premium, if any, on any Debt Security of that series when due; (b) default in
payment of any interest on any Debt Security of that series when due, continued
for 30 days; (c) default in the deposit of any sinking fund payment, when due,
in respect of any Debt Security of that series; (d) default in the performance
of any other covenant of the Corporation in the Indenture (other than a covenant
included in the Indenture solely for the benefit of series of Debt Securities
other than that series), continued for 90 days after written notice as provided
in the Indenture; (e) certain events in bankruptcy, insolvency or
reorganization; and (f) any other Event of Default provided with respect to Debt
Securities of that series. No Event of Default with respect to a particular
series of Debt Securities issued under the Indenture (except as to such events
in bankruptcy, insolvency or reorganization) necessarily constitutes an Event of
Default with respect to any other series of Debt Securities issued thereunder.
(Section 501)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding shall occur and be continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series may, by a notice in writing to the
Corporation (and to the Trustee if given by Holders), declare to be due and
payable immediately the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all Debt Securities
of that series. However, at any time after such a declaration of acceleration
with respect to Debt Securities of any series has been made, but before the
Stated Maturity thereof, the Holders of a majority in principal amount of
Outstanding Debt Securities of that series may, subject to certain conditions,
rescind and annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal, with respect to Debt Securities of that
series have been cured
8
<PAGE> 10
or waived as provided in the Indenture. (Section 502) For information as to
waiver of defaults, see "Modification of the Indenture and Waiver of Covenants"
herein. Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of a portion of the principal
amount of such Original Issue Discount Securities upon the occurrence of an
Event of Default and the continuation thereof.
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Indenture
provides that the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security and indemnity. (Sections 601 and 603). Subject to such provisions for
security and indemnification of the Trustee and certain other rights of the
Trustee, the Holders of a majority in 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 of that series. (Section 512)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Debt Securities
of that series and unless also the Holders of at least 25% in principal amount
of the Outstanding Debt Securities of that series shall have made written
request, and offered reasonable security and indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. (Section 507) However,
the Holder of any Debt Security will have an absolute right to receive payment
of the principal of (and premium, if any) and any interest on such Debt Security
on or after the due dates expressed in such Debt Security and to institute suit
for the enforcement of any such payment. (Section 508)
The Indenture requires the Corporation to furnish to the Trustee annually a
statement as to the absence of certain defaults under the Indenture. (Section
1007) The Indenture provides that the Trustee may withhold notice to the Holders
of Debt Securities of any series of any default (except in payment of principal
or any premium or interest or in sinking fund payments) with respect to Debt
Securities of such series if it considers it in the interest of the Holders of
Debt Securities of such series to do so. (Section 602)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, if applicable, the Corporation will be
discharged from any and all obligations in respect of the Outstanding Securities
(as those terms are defined in the Indenture) of any series (except for certain
obligations to register the transfer or exchange of Outstanding Securities of
such series, to replace stolen, lost or mutilated Outstanding Securities of such
series, to maintain paying agencies and to hold monies for payment in trust)
upon the irrevocable deposit with the Trustee, in trust, of money and/or U.S.
Government Obligations (as defined in the Indenture) which through the payment
of interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of and premium, if
any, and each installment of interest, if any, on the Outstanding Securities of
such series on the Stated Maturity or Redemption Date of such payments in
accordance with the terms of the Indenture and the Outstanding Securities of
such series. Such a trust may only be established if, among other things, (i)
the Corporation has received from, or there has been published by, the Internal
Revenue Service a ruling which, in the Opinion of Counsel (who may be counsel
for the Corporation), provides that Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance and discharge
had not occurred, and (ii) the Corporation has delivered to the Trustee an
Opinion of Counsel (who may be counsel for the Corporation) to the effect that
the Outstanding Securities of such series, if then listed on any securities
exchange, will not be delisted as a result of such deposit, defeasance and
discharge. (Section 402)
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<PAGE> 11
The Indenture provides that, if applicable, the Corporation may omit to
comply with the restrictive covenants contained in Sections 802 (Securities to
be Secured in Certain Events), 1004 (Limitations on Liens), 1005 (Limitation on
Sale and Lease-Back) and 1007 (Statement by Officers as to Default) of the
Indenture, and that such omission shall not be deemed to be an Event of Default
under the Indenture and the Outstanding Securities of any series, upon the
irrevocable deposit with the Trustee, in trust, of money and/or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of and premium, if any, and each installment of
interest on the Outstanding Securities of such series on the Stated Maturity or
Redemption Date of such payments in accordance with the terms of the Indenture
and the Outstanding Securities of such series. The obligations of the
Corporation under the Indenture and the Outstanding Securities of such series
other than with respect to the covenants referred to above and the Events of
Default other than the Event of Default referred to above shall remain in full
force and effect. Such a trust may only be established if, among other things,
the Corporation has delivered to the Trustee an Opinion of Counsel (who may be
counsel for the Corporation) to the effect that (i) the Holders of the
Outstanding Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and defeasance and
will be subject to federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit and defeasance had
not occurred, and (ii) the Outstanding Securities of such series, if then listed
on any securities exchange, will not be delisted as a result of such deposit and
defeasance. (Section 1006)
In the event the Corporation exercises its option to omit compliance with
certain covenants of the Indenture with respect to the Outstanding Securities of
any series as described above and the Outstanding Securities of such series are
declared due and payable because of the occurrence of any Event of Default other
than the Event of Default described in the preceding paragraph, the amount of
money and U.S. Government Obligations on deposit with the Trustee will be
sufficient to pay amounts due on the Outstanding Securities of such series at
the time of their Stated Maturity or Redemption Date but may not be sufficient
to pay amounts due on the Outstanding Securities of such series at the time of
the acceleration resulting from such Event of Default. However, the Corporation
shall remain liable for such payments.
MODIFICATION OF THE INDENTURE AND WAIVER OF COVENANTS
Modifications and amendments of the Indenture may be made by the
Corporation and the Trustee with the consent of the Holders of 66 2/3% in
principal amount of the Outstanding Debt Securities of each series affected by
such modifications or amendments; provided, however, that no such modification
or amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (a) change the stated maturity date of the principal
amount of, or any installment of principal of or interest on, any Debt Security,
(b) reduce the principal amount of, or the premium (if any) or any interest on,
any Debt Security or reduce the amount of principal of an Original Issue
Discount Security that would be due and payable upon acceleration, (c) change
the place or currency of payment of principal of, or premium (if any) or
interest on, any Debt Security, (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security after the
stated maturity date, or (e) reduce the percentage in principal amount of
Outstanding Debt Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture, for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults. (Section 902)
The Holders of 66 2/3% in principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all Debt Securities of
that series waive, insofar as that series is concerned, compliance by the
Corporation with certain restrictive provisions of the Indenture. (Section 1007)
The Holders of a majority in principal amount of the Outstanding Debt Securities
of any series may on behalf of the Holders of all Debt Securities of that series
waive any past default under the Indenture with respect to that series, except a
default in the payment of the principal of (or premium, if any) or any interest
on any Debt Security of that series or in respect of a provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of that series affected. (Section 513)
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<PAGE> 12
REGARDING THE TRUSTEE
The Corporation maintains banking relationships in the ordinary course of
business with The First National Bank of Chicago, the Trustee under the
Indenture, and has two revolving credit agreements in the aggregate amount of
$150 million with such bank. Certain debt securities of the Corporation are
currently outstanding under the Indenture.
PLAN OF DISTRIBUTION
The Corporation may sell Debt Securities to or through underwriters or
dealers, and also may sell Debt Securities directly or indirectly to one or more
other purchasers or through agents. Such underwriters may include Salomon
Brothers Inc and Morgan Stanley & Co. Incorporated, or a group of underwriters
represented by one or both of such firms. Such firms also may act as agents.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the offering of Debt Securities, certain underwriters
and their affiliates may engage in transactions that stabilize, maintain or
otherwise affect the market price of the Debt Securities. Such transactions may
include stabilization transactions effected in accordance with Rule 104 of
Regulation M, pursuant to which such persons may bid for or purchase Debt
Securities for the purpose of stabilizing their market price. The underwriters
also may create a short position for the account of the underwriters by selling
more Debt Securities in connection with the offering than they are committed to
purchase from the Corporation, and in such case may purchase Debt Securities in
the open market following completion of the offering to cover such short
position. Any of the transactions described in this paragraph may result in the
maintenance of the price of the Debt Securities at a level above that which
might otherwise prevail in the open market. None of the transactions described
in this paragraph is required, and, if they are undertaken, they may be
discontinued at any time.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Corporation or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Corporation and any profit on
the resale of Debt Securities by them may be deemed to be underwriting discounts
and commissions, under the Act. Any such underwriter or agent will be
identified, and any such compensation received from the Corporation will be
described, in the Prospectus Supplement.
Underwriters and agents who participate in the distribution of Debt
Securities may be entitled under agreements which may be entered into by the
Corporation to indemnification by the Corporation against certain liabilities,
including liabilities under the Act, or to contribution with respect to payments
which the underwriters or agents may be required to make in respect thereof.
Such underwriters and agents may be customers of, engage in transactions with,
or perform services for the Corporation in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Corporation may authorize
underwriters or other persons acting as the Corporation's agents to solicit
offers by certain institutions to purchase Offered Debt Securities from the
Corporation pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Corporation. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Offered Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The
11
<PAGE> 13
underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
VALIDITY OF DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the validity of
the Debt Securities offered hereby will be passed upon for the Corporation by O.
George Everbach, Senior Vice President -- Law and Government Affairs of the
Corporation, and for the underwriters or agents by Cleary, Gottlieb, Steen &
Hamilton, New York, New York.
EXPERTS
The consolidated financial statements and the related consolidated
financial statement schedules of the Corporation and its consolidated
subsidiaries as of December 31, 1996 and 1995 and for each of the three years in
the period ended December 31, 1996, incorporated in this Prospectus by reference
from the Corporation's Annual Report on Form 10-K for the year ended December
31, 1996, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
S.E.C. Filing Fee........................................... $147,500
Trustee's Charges*.......................................... 2,000
Printing and Engraving*..................................... 40,000
Accounting Fees*............................................ 16,000
Rating Agency Fees*......................................... 80,000
Blue Sky and Legal Fees and Expenses*....................... 15,000
Miscellaneous*.............................................. 24,500
--------
$325,000
========
</TABLE>
- ---------------
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation's By-laws (the "By-laws") provide, among other things, that
the Corporation shall (i) indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, or, in the case of a director or officer of the Corporation, is or
was serving as an employee or agent of a partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, and (ii) indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another corporation, or,
in the case of a director or officer of the Corporation, is or was serving as an
employee or agent of a partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper. Notwithstanding the
foregoing, the Corporation is not required to indemnify any director or officer
of the Corporation in connection with a proceeding (or portion thereof)
initiated by such director or officer against the Corporation or any directors,
officers or employees thereof unless (i) the initiation of such proceeding (or
portion thereof) was authorized by the Board of Directors of the Corporation or
(ii) notwithstanding the lack of such authorization, the person seeking
indemnification is successful on the merits. The By-laws further provide that
the indemnification provided therein shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled.
Section 145 of the General Corporation Law of the State of Delaware
authorizes indemnification by the Corporation of directors and officers under
the circumstances provided in the provisions of the By-Laws described above, and
requires such indemnification for expenses actually and reasonably incurred to
the extent a director or officer is successful in the defense of any action, or
any claim, issue or matter therein.
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<PAGE> 15
The Corporation has purchased insurance which purports to insure the
Corporation against certain costs of indemnification which may be incurred by it
pursuant to the By-Laws and to insure the directors and officers of the
Corporation, and of its subsidiary companies, against certain liabilities
incurred by them in the discharge of their functions as such directors and
officers except for liabilities resulting from their own malfeasance.
The forms of Underwriting Agreement and Distribution Agreement filed as
Exhibits 1.1 and 1.2 hereto provide for indemnification and contribution by
underwriters or agents, as the case may be, with respect to certain liabilities
of directors and officers of the Corporation and other persons, if any, who
control the Corporation.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1.1* -- Form of Underwriting Agreement
1.2 -- Form of Distribution Agreement (incorporated by reference
to Exhibit 1.2 to the Registration Statement on Form S-3
filed on June 17, 1994 (Registration No. 33-54177)
4.1* -- First Amended and Restated Indenture dated as of March 1,
1998 (the "Indenture") between the Corporation and Bank
of America National Trust and Savings Association, as
successor Trustee ("BOA")
4.2* -- Three forms of Debt Securities (included in Exhibit 4.1
at pages A-1 through C-5)
4.3 -- First Supplemental Indenture, dated as of November 6,
1992, to the Indenture (incorporated by reference to
Exhibit 4.3 to the Registration Statement on Form S-3
filed on June 17, 1994 (Registration No. 33-54177))
4.4 -- Second Supplemental Indenture, dated as of May 25, 1994,
to the Indenture (incorporated by reference to Exhibit
4.4 to the Registration Statement on Form S-3 filed on
June 17, 1994 (Registration No. 33-54177))
4.5* -- Instrument of Resignation, Appointment and Acceptance
dated as of December 12, 1995 among the Corporation, BOA
and The First National Bank of Chicago, as successor
Trustee
5* -- Opinion of O. George Everbach, Senior Vice
President -- Law and Government Affairs of the
Corporation, as to the validity of the Debt Securities
12* -- Computation of Ratio of Earnings to Fixed Charges for the
five years ended December 31, 1997
23.1* -- Consent of Deloitte & Touche LLP
23.2* -- Consent of Coopers & Lybrand L.L.P.
23.3* -- The consent of O. George Everbach, Senior Vice
President -- Law and Government Affairs of the
Corporation, is contained in his opinion filed as Exhibit
5 to this Registration Statement
24* -- Directors' Powers of Attorney
25* -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of The First National
Bank of Chicago dated as of February 2, 1998
</TABLE>
- ---------------
* Filed herewith
ITEM 17. UNDERTAKINGS.
The Corporation hereby undertakes (1) to file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by
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<PAGE> 16
section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the
prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; provided that any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in this Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in the Registration Statement; provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if this Registration
Statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Corporation pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement; (2) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; (3) to remove from registration by means
of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering; (4) that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Corporation's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; (5)
that, for purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon rule 430A and contained in the form of
prospectus filed by the Corporation pursuant to rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and (6) that, for the
purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the provisions described under Item 15 above or
otherwise, the Corporation has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Corporation of expenses incurred or paid by a director, officer or
controlling person of the Corporation in the successful defense of any action,
suit or proceeding) is asserted against the Corporation by such director,
officer or controlling person in connection with the securities being
registered, the Corporation will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irving, State of Texas, on February 2, 1998.
KIMBERLY-CLARK CORPORATION
By: /s/ WAYNE R. SANDERS
----------------------------------
Wayne R. Sanders
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<C> <S> <C>
/s/ WAYNE R. SANDERS Chairman of the Board and February 2, 1998
- ----------------------------------------------------- Chief Executive Officer
Wayne R. Sanders and Director (principal
executive officer)
/s/ JOHN W. DONEHOWER Senior Vice President and February 2, 1998
- ----------------------------------------------------- Chief Financial Officer
John W. Donehower (principal financial
officer)
/s/ RANDY J. VEST Vice President and February 2, 1998
- ----------------------------------------------------- Controller (principal
Randy J. Vest accounting officer)
</TABLE>
DIRECTORS
<TABLE>
<C> <C>
* *
- ----------------------------------------------------- -----------------------------------------------------
John F. Bergstrom Louis E. Levy
* *
- ----------------------------------------------------- -----------------------------------------------------
Pastora San Juan Cafferty Frank A. McPherson
* *
- ----------------------------------------------------- -----------------------------------------------------
Paul J. Collins Linda Johnson Rice
* *
- ----------------------------------------------------- -----------------------------------------------------
Robert W. Decherd Wolfgang R. Schmitt
* *
- ----------------------------------------------------- -----------------------------------------------------
William O. Fifield Randall L. Tobias
- -----------------------------------------------------
Claudio X. Gonzalez
</TABLE>
February 2, 1998
*By: /s/ O. GEORGE EVERBACH
-------------------------------
O. George Everbach
Attorney-in-Fact
II-4
<PAGE> 18
EXHIBIT INDEX
The following is a list of Exhibits included as part of this Registration
Statement.
<TABLE>
<CAPTION>
NO. DESCRIPTION OF EXHIBIT
--- ----------------------
<C> <S> <C>
1.1* -- Form of Underwriting Agreement
1.2 -- Form of Distribution Agreement (incorporated by reference
to Exhibit 1.2 to the Registration Statement on Form S-3
filed on June 17, 1994 (Registration No. 33-54177)
4.1* -- First Amended and Restated Indenture dated as of March 1,
1998 (the "Indenture") between the Corporation and Bank
of America National Trust and Savings Association, as
successor Trustee ("BOA")
4.2* -- Three forms of Debt Securities (included in Exhibit 4.1
at pages A-1 through C-5)
4.3 -- First Supplemental Indenture, dated as of November 6,
1992, to the Indenture (incorporated by reference to
Exhibit 4.3 to the Registration Statement on Form S-3
filed on June 17, 1994 (Registration No. 33-54177))
4.4 -- Second Supplemental Indenture, dated as of May 25, 1994,
to the Indenture (incorporated by reference to Exhibit
4.4 to the Registration Statement on Form S-3 filed on
June 17, 1994 (Registration No. 33-54177))
4.5* -- Instrument of Resignation, Appointment and Acceptance
dated as of December 12, 1995 among the Corporation, BOA
and The First National Bank of Chicago, as successor
Trustee
5* -- Opinion of O. George Everbach, Senior Vice
President -- Law and Government Affairs of the
Corporation, as to the validity of the Debt Securities
12* -- Computation of Ratio of Earnings to Fixed Charges for the
five years ended December 31, 1997
23.1* -- Consent of Deloitte & Touche LLP
23.2* -- Consent of Coopers & Lybrand L.L.P.
23.3* -- The consent of O. George Everbach, Senior Vice
President -- Law and Government Affairs of the
Corporation, is contained in his opinion filed as Exhibit
5 to this Registration Statement
24* -- Directors' Powers of Attorney
25* -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of The First National
Bank of Chicago dated as of February 2, 1998
</TABLE>
- ---------------
* Filed herewith
II-5
<PAGE> 1
EXHIBIT 1.1
KIMBERLY-CLARK CORPORATION
---------------
UNDERWRITING AGREEMENT
Kimberly-Clark Corporation
P.O. Box 619100
DFW Airport Station
Dallas, Texas 75261-9100
, 198
Dear Sirs:
The underwriter or underwriters named in Schedule I hereto (the
"Underwriters"), acting through the firm or firms named in Schedule I-A hereto
as representatives (the "Representatives"), understand that Kimberly-Clark
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
$ aggregate principal amount of the Company's debt securities designated
in Schedule II hereto (the "Designated Securities"), registered on Registration
Statement No. 2- under the Securities Act of 1933, as amended. The Designated
Securities are to be issued under the indenture designated in Schedule II
hereto (the "Indenture"), between the Company and the trustee designated in
such Schedule II. Subject to the terms and conditions set forth herein or
incorporated by reference herein and referred to below, the Company hereby
agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, the principal
amount of such Designated Securities set forth opposite the name of such
Underwriter in such Schedule I [less, with respect to each such Underwriter,
the principal amount of Designated Securities covered by Delayed Delivery
Contracts, if any, determined, in accordance with the provisions of Section 3
of the Kimberly-Clark Corporation Underwriting Agreement General Terms and
Conditions referred to below, to be attributable to such Underwriter]* at the
Purchase Price to Underwriters set forth in Schedule II hereto. If the firm or
firms named in Schedule I-A hereto include only the firm or firms named as
Underwriters in Schedule I hereto, the terms "Underwriters" and
"Representatives" shall each be deemed to refer to such firm or firms.
The Underwriters will pay for such Designated Securities [(less any
Designated Securities sold pursuant to Delayed Delivery Contracts)]* upon
delivery thereof at the Closing Location and on the Date and Time of Delivery
set forth in Schedule II hereto.
The Designated Securities shall have the terms set forth in Schedule II
hereto.
[The commission to be paid to the Underwriters in respect of Designated
Securities purchased pursuant to Delayed Delivery Contracts arranged by the
Underwriters shall be an amount equal to the percentage of the principal amount
thereof set forth under the caption "Delayed Delivery" in Schedule II hereto.]*
Unless otherwise provided herein, all the provisions contained in the
document entitled Kimberly-Clark Corporation Underwriting Agreement General
Terms and Conditions, a copy of which was filed as an exhibit to the aforesaid
Registration Statement, are herein incorporated by reference in their entirety
and shall be deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein.
- -------------
* To be added only if Delayed Delivery Contracts are contemplated.
<PAGE> 2
Please confirm your agreement by (i) having an authorized officer sign a
copy of this Agreement in the space set forth below, (ii) returning the signed
copy to us and (iii), in addition, having an authorized officer send us no later
than [state date and time] by wire, telex, facsimile transmission or other
written means, the following message:
"We have entered into the Underwriting Agreement dated [ insert date ]
relating to the Designated Securities referred to therein by signing a copy
of the Underwriting Agreement and returning the same or depositing the same
in the mail to you."
Very truly yours,
[Signature of Underwriter or Underwriters]
OR
[Name of Representatives]
[By
-------------------------------------
Acting severally on behalf of [itself]
[themselves] and the several
Underwriters named above]
Accepted:
Kimberly-Clark Corporation
By
----------------------------
Authorized Officer
2
<PAGE> 3
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- ---------------------
<S> <C>
$
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- ---------------------
<S> <C>
$
---------------------
Total..................................... $
=====================
</TABLE>
2
<PAGE> 5
SCHEDULE I-A
REPRESENTATIVE(S)
3
<PAGE> 6
SCHEDULE II
Indenture:
Trustee:
Title of Designated Securities:
Aggregate principal amount
Initial Offering Price to Public:
Purchase Price to Underwriters:
% of the principal amount of the
Designated Securities, plus accrued
interest from to the Time of Delivery
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Sinking Fund Provisions:
Date and Time of Delivery:
Closing Location:
Funds for Payment of Purchase Price:
Delayed Delivery:
Underwriters' commission shall be %
of the principal amount of Designated
Securities for which Delayed Delivery
Contracts have been entered into and the
check given in payment of such
commission shall be drawn to the order
of:
Maximum aggregate Principal Amount
of Designated Securities to be offered
and sold pursuant to Delayed Delivery
Contracts: $
Name and Address for purposes of Section 12:
[Other Terms]:
<PAGE> 7
KIMBERLY-CLARK CORPORATION
---------------
DEBT SECURITIES
Underwriting Agreement General Terms and Conditions
Kimberly-Clark Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time certain of its debt securities (the
"Securities") registered under the Securities Act of 1933, as amended (the
"Act"), as set forth in Section 2. The Securities are to be issued in one or
more series under one or more indentures between the Company and such banking
institutions, as trustees, as, in the case of any such indenture or any such
trustee, is designated in Schedule II to the Underwriting Agreement (as defined
below) relating to any such series (each indenture and trustee so designated
with respect to any such series being hereinafter referred to as the "Indenture"
and the "Trustee", respectively).
From time to time, the Company may enter into one or more underwriting
agreements that provide for the sale of the Securities specified in Schedule II
to such underwriting agreement to the underwriter or several underwriters named
in Schedule I to such underwriting agreement (the "Underwriters"). The general
terms and conditions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement.
1. The Company proposes to issue and sell the Securities in one or more
series, which series may vary as to their terms (including, but not limited to,
interest rate, maturity, any redemption provisions and any sinking fund
requirements), all of such terms for any particular series being determined at
the time of sale. All or a portion of particular series of the Securities will
be purchased by the Underwriters for resale upon terms of offering determined at
the time of sale. The Securities so to be purchased in any such offering are
hereinafter referred to as the "Designated Securities", and any firm or firms
named in Schedule I-A to this Agreement as acting as representatives of such
Underwriters are hereinafter referred to as the "Representatives". If the firm
or firms named in Schedule I-A to this Agreement include only the firm or firms
named in Schedule I hereto, the terms "Underwriters" and "Representatives" shall
each be deemed to refer to such firm or firms. The term "Underwriters'
Securities" means Designated Securities other than Contract Securities. The term
"Contract Securities" means Designated Securities, if any, to be purchased
pursuant to Delayed Delivery Contracts (as defined in Section 3 hereof) below.
The obligations of the Underwriters under this Agreement are several and
not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission") and
has become effective under the Act, in the form heretofore delivered or
hereafter to be delivered to the Representatives and, excluding exhibits to
such registration statement, but including all documents incorporated by
reference therein on or prior to the date of this Agreement, to the
Representatives for each of the other Underwriters; such registration
statement, including all exhibits thereto but excluding Form T-1, and the
prospectus included in such registration statement, each as amended at the
date of this Agreement, being hereinafter called the "Registration
Statement" and the "Basic Prospectus", respectively. As used in this
Agreement, "Prospectus" means the Basic Prospectus together with
the prospectus supplement specifically relating to the Designated
Securities in the definitive form filed or to be filed pursuant to Rule 424
under the Act; and "Preliminary Prospectus" means the Basic Prospectus
together with a preliminary prospectus supplement specifically relating to
the
<PAGE> 8
Designated Securities. Any reference herein to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents or portions thereof incorporated by reference therein
pursuant to the applicable form under the Act; and any reference to any
amendment or supplement to the Basic Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents or
portions thereof filed after the date of this Agreement under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and so
incorporated by reference; and
(b) The Registration Statement and the Prospectus conform, and any
further amendments or supplements thereto, when they become effective or
are filed with the Commission, will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder;
the Registration Statement and the Basic Prospectus, on the effective date
of the Registration Statement, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Prospectus does not, and any amendments or supplements thereto, when they
become effective or are filed with the Commission, 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 light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties contained in this
paragraph (b) shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by any Underwriter through the Representatives expressly for
use therein.
3. Upon authorization by the Representatives of the release of the
Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus.
The Company may specify in Schedule II to this Agreement that the
Underwriters are authorized to solicit offers to purchase Designated Securities,
in the maximum aggregate principal amount specified in such Schedule II, from
the Company pursuant to delayed delivery contracts (herein called "Delayed
Delivery Contracts"), substantially in the form of Annex I attached hereto but
with such changes therein as the Representatives and the Company may authorize
or approve. If so specified, the Underwriters will endeavor to make such
arrangements, and as compensation therefor the Company will pay to the
Representatives, for the accounts of the Underwriters, at the Time of Delivery
(as defined in Section 4 hereof), a commission in the amount set forth in such
Schedule II. Delayed Delivery Contracts, if any, are to be with institutional
investors of the types approved by the Company and set forth in the Prospectus
and subject to other conditions therein set forth. The Underwriters will not
have any responsibility in respect of the validity or performance of any Delayed
Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to this Agreement shall be, in each case, the principal
amount of Contract Securities which the Company has been advised by the
Representatives has been attributed to such Underwriter, provided that, if the
Company has not been so advised, the amount of Contract Securities to be so
deducted shall be, in each case, that proportion of Contract Securities which
the principal amount of Designated Securities to be purchased by such
Underwriter under this Agreement bears to the total principal amount of the
Designated Securities (rounded as the Representatives may determine to the
nearest $1,000 principal amount). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to this Agreement
shall be the total principal amount of Designated Securities set forth in
Schedule I to this Agreement less the principal amount of the Contract
Securities. The Company will deliver to the Representatives not later than 3:30
p.m., New York time, on the third business day preceding the Time of Delivery
(or such other time and date as the Representatives and the Company may agree
upon in writing) a written notice setting forth the principal amount of Contract
Securities.
2
<PAGE> 9
4. Underwriters' Securities to be purchased by each Underwriter pursuant to
this Agreement, in definitive form, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks, payable
to the order of the Company in the funds specified in Schedule II to this
Agreement, all at the place and time and date specified in such Schedule II or
at such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery".
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to Representatives for the accounts of the
Underwriters a check payable to the order of the party designated in Schedule II
to this Agreement in the amount of the compensation payable by the Company to
the Underwriters in respect of any Delayed Delivery Contracts as provided in
Section 3 hereof and in such Schedule II.
5. The Company agrees with each of the Underwriters of the Designated
Securities:
(a) To make no amendment or supplement to the Registration Statement
or Prospectus after the execution of this Agreement and prior to the Time
of Delivery without furnishing prior thereto a copy of each such amendment
or supplement to the Representatives; to advise the Representatives
promptly of any such amendment or supplement after the Time of Delivery, to
furnish the Representatives with copies of any such amendment or supplement
after the Time of Delivery and to file promptly all documents required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, in each case for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Designated Securities; to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has become effective or when any supplement to the
Prospectus or any amended Prospectus has been filed, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of the Prospectus or any supplement thereto or any amended Prospectus,
of the suspension of the qualification of the Designated Securities for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and in the event of the issuance
of any stop order or of any order preventing or suspending the use of the
Prospectus or any supplement thereto or any amended Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated Securities
for offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the
Designated Securities, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as the Representatives may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time and if at such
time any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the
3
<PAGE> 10
Representatives and upon the request of the Representatives so to amend or
supplement the Prospectus or file such document, as the case may be, and to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders not later than
eighteen months after the date of this Agreement an earning statement of
the Company and its subsidiaries (which need not be audited) complying with
Section 11 (a) of the Act and covering a period of at least twelve
consecutive months beginning after the date of this Agreement; and
(e) During the period beginning on the date of this Agreement and
continuing to and including the earlier of (i) the termination of trading
restrictions on the Designated Securities, as notified to the Company by
the Representatives, and (ii) the Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which mature more than one year after the Time of Delivery and which are
substantially similar to the Designated Securities, without the prior
written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing any Agreement among
Underwriters, this Agreement, the Indenture, any Delayed Delivery Contracts, any
Blue Sky and Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Designated Securities;
(iii) all expenses in connection with the qualification of the Designated
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Designated Securities; (v) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Designated Securities; (vi) the
cost of preparing certificates for the Designated Securities; (vii) the fees and
expenses of the Trustee under the Indenture and any agent of the Trustee and the
fees and disbursements of any counsel for the Trustee in connection with the
Indenture and the Designated Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Designated Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of the Designated Securities
hereunder shall be subject, in their discretion, to the condition that all
representations and warranties of the Company herein are, at and as of the Time
of Delivery, true and correct in all material respects, the condition that the
Company shall have performed in all material respects all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been initiated or, to the best knowledge of the Company, threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the date
of the Time of Delivery, in form and substance
4
<PAGE> 11
reasonably satisfactory to the Representatives, with respect to the
incorporation of the Company, the validity of the Indenture, the Designated
Securities, the Delayed Delivery Contracts, if any, the Registration
Statement, the Prospectus, and such other matters as the Representatives
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(c) The General Counsel of the Company shall have furnished to the
Representatives his written opinion, dated the date of the Time of
Delivery, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented, if applicable;
(ii) To the best of such counsel's knowledge there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body involving the Company or any of
its properties required to be disclosed in the Registration Statement
which is not adequately disclosed in the Prospectus as amended or
supplemented, if applicable; and such counsel does not know of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated
by reference into the Prospectus as amended or supplemented, if
applicable, or required to be described in the Registration Statement
or the Prospectus as amended or supplemented, if applicable, which are
not filed or incorporated by reference or described as required,
(iii) This Agreement and all Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by the Company;
(iv) The Designated Securities have been duly authorized by the
Company and, when duly executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the
Underwriters, 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 valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting enforcement of
creditors' -rights and to general equity principles; and the
Designated Securities and the Indenture conform in all material
respects to the description thereof in the Prospectus as amended or
supplemented, if applicable;
(v) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting enforcement of
creditors' rights and to general equity principles; and the Indenture
has been duly qualified under the Trust Indenture Act;
(vi) The issuance and sale of the Designated Securities and the
compliance by the Company with the provisions of the Designated
Securities, the Indenture, each of the Delayed Delivery Contracts, if
any, and this Agreement and the consummation of the transactions
relating to the Designated Securities contemplated herein and therein
will not conflict with or result in a breach of the terms or
provisions of, or constitute a default under, any indenture, loan
agreement or other agreement or instrument in respect of indebtedness
for money borrowed known to such counsel to which the Company is a
party or by which the Company is bound or, to the knowledge of such
counsel, any other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the
5
<PAGE> 12
provisions of the Restated Certificate of Incorporation, as amended,
or the By-Laws of the Company or, to the knowledge of such counsel,
any statute or any order, rule or regulation of any court or
regulatory authority or other governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification
of or with any court or any such regulatory authority or other
governmental agency or body is required for the issuance and sale by
the Company of the Designated Securities or the consummation of the
transactions relating to the Designated Securities contemplated by
this Agreement or the Indenture or any of such Delayed Delivery
Contracts, except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws;
(vii) The documents or portions thereof, if any, incorporated by
reference in the Prospectus (other than the financial statements,
related schedules and other financial and statistical information
included therein, as to which such counsel need express no opinion),
when they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and
(viii) The Registration Statement and the Prospectus as amended
or supplemented, if applicable, (other than the financial statements,
related schedules and other financial and statistical information
included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the Trust Indenture Act and the rules and regulations
thereunder; and, although such counsel is not passing upon, and does
not assume responsibility for the accuracy, completeness or fairness
of statements contained in the Registration Statement or the
Prospectus as amended or supplemented, if applicable (except as to the
matters specified in the last clause of subparagraph (iv) of this
paragraph (c)), nothing has come to the attention of such counsel that
causes such counsel to believe that either the Registration Statement
or the Prospectus as amended or supplemented, if applicable, contains
an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein, in fight of the circumstances under which they were made, not
misleading;
(d) At the Time of Delivery, Deloitte Haskins & Sells shall have
furnished to the Representatives a letter or letters, dated the Time of
Delivery, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex II hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest financial statements contained in
the Prospectus any loss or interference material to the business of the
Company and its subsidiaries taken as a whole from fire, explosion, flood
or other calamity or from any labor dispute or court or governmental
action, order or decree and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any
material change in the capital stock or long-term debt of the Company or
any material adverse change, or any development which will result in a
material adverse change, in the business, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole, otherwise (in any such case described in clause (i) or (ii)
hereof) than as set forth or contemplated in the Prospectus, the effect of
which (in any such case described in clause (i) or (ii) hereof) is in the
reasonable judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus;
(f) Subsequent to the execution of this Agreement, there shall not
have occurred any downgrading in any rating accorded to the Company's
senior debt securities by Moody's Investor Service Inc. or Standard & Poors
Corporation; provided, however, that this paragraph (f) shall not
6
<PAGE> 13
apply to either of such rating agencies which shall have notified the
Representatives of the rating of the Designated Securities prior to the
execution of this Agreement;
(g) Subsequent to the execution of this Agreement, there shall not
have occurred any of the following: (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iii) the engagement by
the United States in hostilities which have resulted in the declaration, on
or after the date of this Agreement, of a national emergency or war, the
effect of which (in any such case described in clause (i), (ii) or (iii)
hereof) in the reasonable judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery one or more certificates of
officers of the Company reasonably satisfactory to the Representatives as
to the accuracy in all material respects of the representations and
warranties of the Company herein at and as of the Time of Delivery, as to
the performance in all material respects by the Company of all of its
obligations hereunder to be performed at or prior to the Time of Delivery,
and as to the matters set forth in paragraph (a) and clauses (i) and (ii)
of paragraph (e) of this Section 7, with the certificate based upon
knowledge or belief as to proceedings initiated or threatened referred to
in such paragraph (a) and as to the matters referred to in clauses (i) and
(ii) of such paragraph (e).
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein; and provided, further, that such
indemnity with respect to the Registration Statement or any Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, claim, damage or liability purchased the
Designated Securities which are the subject thereof if such person did not
receive a copy of the Prospectus or the Prospectus as amended or supplemented
(excluding documents incorporated by reference) at or prior to the confirmation
of the sale of the Designated Securities 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 Registration Statement or any such Preliminary
Prospectus was corrected in the Prospectus or the Prospectus as amended or
supplemented.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or
7
<PAGE> 14
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Designated Securities to
which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Designated Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
8
<PAGE> 15
fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Underwriters' Securities which it has agreed to purchase under this Agreement,
the Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Underwriters' Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Underwriters' Securities, then the Company shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Underwriters' Securities on
such terms. In the event that, within the respective prescribed periods, the
Representatives notify the Company that they have so arranged for the purchase
of such Underwriters' Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Underwriters' Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives, by the Company, or by both, as the case may be, as provided in
subsection (a) above, the aggregate principal amount of such Underwriters'
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Designated Securities, then the Company
shall have the right to require each nondefaulting Underwriter to purchase the
principal amount of Underwriters' Securities which such Underwriter agreed to
purchase under this Agreement and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase under this
Agreement) of the Underwriters' Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives, by the Company, or by both, as the case may be, as provided in
subsection (a) above, the aggregate principal amount of Underwriters' Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Designated Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Underwriters' Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof, but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
9
<PAGE> 16
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Designated Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter with respect to
the Designated Securities except as provided in Section 6 and Section 8 hereof;
but, if for any other reason Underwriters' Securities are not delivered by or on
behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to the Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing and if to the
Underwriters shall be sufficient in all respects, if delivered or sent by
registered mail to the Representatives in care of the firm and at the address
specified in Schedule II to this Agreement and if to the Company shall be
sufficient in all respects if delivered or sent by registered mad to the address
of the Company set forth on the facing page of the Registration Statement,
Attention: Treasurer; provided, however, that any notice to an Underwriter
pursuant to Section 8 (c) hereof shall be delivered or sent by registered mail
to such Underwriter at its address set forth in its Underwriters' Questionnaire
delivered to the Company.
13. This Agreement shall be binding upon, and inure solely to the benefit
Of, the Underwriters, the Company and, to the extent provided in Section 8 and
Section 10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Designated Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be construed in accordance with the laws of the
State of New York.
16. This Agreement may be executed by any one or more of the parties hereto
and thereto in any number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall together constitute one
and the same instrument.
10
<PAGE> 17
ANNEX I
DELAYED DELIVERY CONTRACT
KIMBERLY-CLARK CORPORATION
c/o
, 198
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Kimberly-Clark Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$
principal amount of the Company's [Title of Designated Securities] (hereinafter
called the "Designated Securities"), offered by the Company's Prospectus dated
, 198 [as amended or supplemented], receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof, plus
accrued interest from the date from which interest accrues as set forth below,
and on the further terms and conditions set forth in this contract.
[The undersigned will purchase the Designated Securities from the Company
on , 198 (the "Delivery Date") and interest on the Designated Securities so
purchased will accrue from , 198.]
[The undersigned will purchase the Designated Securities from the Company
on the delivery date or dates and in the principal amount or amounts set forth
below:
<TABLE>
<CAPTION>
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
------------- --------- ----------------
<S> <C> <C>
, 198 $ , 198
, 198 $ , 198
</TABLE>
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to the Company or its order
by certified or official bank check in Clearing House funds at the office of
, , , or by wire transfer to a bank account specified by the Company,
on [the] [such] Delivery Date upon delivery to the undersigned of the Designated
Securities then to be purchased by the undersigned in definitive fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to [the] [such] Delivery
Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [the] [each] Delivery Date shall be subject to the
conditions that (a) the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject and (b) the
Company, on or before , 198, shall have sold to the several Underwriters,
pursuant to the Underwriting Agreement dated , 198 with the Company an
aggregate principal amount of Designated Securities equal to minus the aggregate
principal amount of Designated Securities to be covered by this contract and
other contracts similar to this contract. The obligation of the undersigned to
take delivery of and make payment for Designated Securities shall not be
affected by the failure of any purchaser to take
<PAGE> 18
delivery of and make payment for Designated Securities pursuant to other
contracts similar to this contract.
Promptly after completion of the 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 or Opinions of Counsel for the
Company delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
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.
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
without limiting the foregoing, acceptances of such contracts need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested 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 when such counterpart is so mailed or delivered by the Company.
Yours very truly,
---------------------------------
By
-------------------------------
(Signature)
-------------------------------
(Name and Title)
-------------------------------
(Address)
Accepted, ,198
KIMBERLY-CLARK CORPORATION
By
-----------------------------
(Title)
2
<PAGE> 19
ANNEX II
At the Time of Delivery, Deloitte Haskins & Sells shall have furnished to
the Representatives a letter or letters, dated the date of the Time of Delivery,
in form and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder, and the information,
if any, with respect to them required to be given in response to Item 10 of
Form S-3 and set forth in the Prospectus is correct;
(ii) In their opinion, the financial statements and schedules examined
by them and included or incorporated by reference in the Prospectus or any
amendment or supplement thereto prior to the date of such letter comply as
to form in all material respects with the applicable accounting
requirements of [the Act or] the Exchange Act [, as applicable,] and the
published rules and regulations thereunder;
(iii) On the basis of having carried 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 below, including a reading of the
unaudited financial statements and schedules and other information referred
to below, a reading of the latest interim financial statements made
available by the Company, a reading of the minutes of the meetings of the
Board of Directors, Executive Committee and Finance Committee of the
Company since December 31, 198[] [date of last audited financial
statements], inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
[(A) the unaudited financial statements included or incorporated
by reference in the Prospectus or any amendment or supplement thereto
prior to the date of such letter, do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the published rules and regulations thereunder as
they relate to Form 10-Q or are not fairly presented in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the year ended December 31,
198[ ] (the "Annual Report");]
[(B) the unaudited information with respect to the Company's
consolidated financial position and consolidated results of operations
as of and for the [three] [six] [nine] months ended [March 31] [June
30] [September 30], 198[ ] and 198[ ] included in the Prospectus or
any such amendment or supplement thereto under the caption " "
does not agree with the corresponding amounts in the unaudited
consolidated financial statements referred to in Clause (A) or was not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Annual Report;]
[(C) the internal unaudited financial statements for the
month[s] ended , 198[ ] and 198[ ], which were not included in
the Prospectus or any such amendment or supplement thereto but from
which were derived certain unaudited financial information included in
the Prospectus or any such amendment or supplement thereto in text
under the caption " ',are not stated on a basis substantially
consistent with that of the audited financial statements included in
the Prospectus;]
[(D) certain unaudited financial information included in the
Prospectus or any such amendment or supplement thereto in text under
the caption " " does not agree with the corresponding amounts
in the internal unaudited financial statements referred to in
<PAGE> 20
Clause (C) or was not determined on a basis substantially consistent
with that of the corresponding amounts in the audited financial
statements included in the Prospectus or any such amendment or
supplement thereto;
(E) as of a specified date not more than five days prior to the
date of delivery of such letter, there have been any changes in the
capital stock or long-term debt of the Company and its subsidiaries on
a consolidated basis, or any decreases in consolidated net current
assets or consolidated net assets of the Company and its subsidiaries,
in each case as compared with amounts shown in the balance sheet of
the Company and its subsidiaries as of , 198[ ] [date of last Form
10-Q financial statements included or incorporated by reference in the
Prospectus or any such amendment or supplement thereto] included or
incorporated by reference in the Prospectus or any such amendment or
supplement thereto, except in each case for changes or decreases which
the Prospectus or any such amendment or supplement thereto discloses
have occurred or may occur and/or which are described in such letter,
and
(F) for the period from , 198[ ] [date of last Form 10-Q
financial statements included or incorporated by reference in the
Prospectus or any such amendment or supplement thereto] to such
specified date there were any decreases in consolidated net sales,
income before income taxes or the total or per share amounts of net
income, in each case as compared with the comparable period of the
preceding year, except in each case for decreases which the Prospectus
or any such amendment or supplement thereto discloses have occurred or
may occur and/or which are described in such letter; and
(iv) In addition, they have performed certain specified procedures,
not constituting an audit, with respect to 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) which appear in the
Prospectus or any such amendment or supplement thereto, (excluding
documents incorporated by reference) [and in Exhibit[s] 12 [and ] to the
Registration Statement], in the Annual Report and Exhibit[s] [and ]
thereto, and in the Company's Quarterly Report[s] for the quarter[s] ended
[March 31] [and] [,] [June 30] [and September 30], 198[ ] and Exhibit[s]
[and ] thereto, and which are specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement, excluding any questions of legal
interpretation.
2
<PAGE> 1
EXHIBIT 4.1
[CONFORMED COPY]
================================================================================
KIMBERLY-CLARK CORPORATION
TO
BANK OF AMERICA
NATIONAL TRUST AND
SAVINGS ASSOCIATION
SUCCESSOR TRUSTEE
------------------------------
FIRST AMENDED AND RESTATED INDENTURE
DATED AS OF MARCH 1, 1988
------------------------------
AMENDING AND RESTATING THE INDENTURE, DATED AS OF JANUARY 15, 1983, BETWEEN
KIMBERLY-CLARK CORPORATION (THE "COMPANY") AND CITIBANK, N.A., AS SUPPLEMENTED
AND AMENDED PURSUANT TO THE TRIPARTITE AGREEMENT, EFFECTIVE AS OF JANUARY 15,
1985, AMONG THE COMPANY, CITIBANK, N.A., AND BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS SUCCESSOR TRUSTEE (THE "TRUSTEE"), AND SUPPLEMENTAL
INDENTURE NO. 1 DATED AS OF JUNE 1, 1987 BETWEEN THE COMPANY AND THE TRUSTEE.
================================================================================
<PAGE> 2
KIMBERLY-CLARK CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
FIRST AMENDED AND RESTATED INDENTURE, DATED AS OF MARCH 1, 1988
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
<S> <C>
SECTION 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . 608
610
Section 311(a). . . . . . . . . . . . . . . . . . . . . . . . 613(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 613(b)
(b)(2). . . . . . . . . . . . . . . . . . . . . . 703(a)(2)
703(b)
Section 312(a). . . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a). . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . 703(a), 703(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . 703(c)
Section 314(a). . . . . . . . . . . . . . . . . . . . . . . . 704
(b). . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a). . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b). . . . . . . . . . . . . . . . . . . . . . . . 602
703(a)(6)
(c). . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d). . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e). . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a). . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a). . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
i
TABLE OF CONTENTS
<TABLE>
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<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act . . . . . . . . . . . . . . . . . . . . . . 3
Affiliate . . . . . . . . . . . . . . . . . . . 3
Attributable Debt . . . . . . . . . . . . . . . 3
Authenticating Agent . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . 4
Company Request; Company Order . . . . . . . . . 4
Consolidated Net Tangible Assets . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . 6
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 4
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<S> <C>
Predecessor Security . . . . . . . . . . . . . . 6
Principal Property . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . 7
Restricted Subsidiary . . . . . . . . . . . . . 7
Sale and Lease-Back Transaction . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . 8
Security Register and Security Registrar . . . . 8
Special Record Date . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . 8
Timberland . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Company . . . . . 11
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents . . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of Authentication 13
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . 14
</TABLE>
<PAGE> 5
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SECTION 302. Denominations . . . . . . . . . . . . . . . . . 16
SECTION 303. Execution, Authentication, Delivery and Dating . 16
SECTION 304. Temporary Securities . . . . . . . . . . . . . . 18
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . 18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 19
SECTION 307. Payment of Interest; Interest Rights Preserved . 20
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . 21
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . 22
SECTION 310. Computation of Interest . . . . . . . . . . . . 22
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . 22
SECTION 402. Defeasance and Discharge of Securities of Any
Series . . . . . . . . . . . . . . . . . . . . . 23
SECTION 403. Application of Trust Money . . . . . . . . . . . 25
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . 26
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . 27
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . 28
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . 29
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities . . . . . . . . . . . . . . . . . 30
SECTION 506. Application of Money Collected . . . . . . . . . 30
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . 30
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . 31
SECTION 509. Restoration of Rights and Remedies . . . . . . . 31
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . 31
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . 32
SECTION 512. Control by Holders . . . . . . . . . . . . . . . 32
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . 32
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . 32
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . 33
</TABLE>
<PAGE> 6
iv
<TABLE>
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . 33
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . 34
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . 35
SECTION 604. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . 36
SECTION 605. May Hold Securities . . . . . . . . . . . . . . 36
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . 36
SECTION 607. Compensation and Reimbursement . . . . . . . . . 36
SECTION 608. Disqualification; Conflicting Interests . . . . 37
(a) Elimination of Conflicting Interest
or Resignation. . . . . . . . . . . . . . . 37
(b) Notice of Failure to Eliminate Conflicting
Interest or Resign . . . . . . . . . . . . . 37
(c) "Conflicting Interest" Defined . . . . . . . 37
(d) Definitions of Certain Terms Used in
This Section . . . . . . . . . . . . . . . . 40
(e) Calculation of Percentages of Securities . . 41
SECTION 609. Corporate Trustee Required; Eligibility . . . . 42
SECTION 610. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . 42
SECTION 611. Acceptance of Appointment by Successor . . . . . 44
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . 45
SECTION 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . 45
(a) Segregation and Apportionment of Certain
Collections by Trustee, Certain Exceptions . 45
(b) Certain Creditor Relationships Excluded from
Segregation and Apportionment . . . . . . . 47
(c) Definitions of Certain Terms Used in
This Section . . . . . . . . . . . . . . . . 48
SECTION 614. Appointment of Authenticating Agent . . . . . . 49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . . 51
SECTION 702. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . 51
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . 52
SECTION 704. Reports by Company . . . . . . . . . . . . . . . 53
</TABLE>
<PAGE> 7
v
<TABLE>
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., on Certain
Terms . . . . . . . . . . . . . . . . . . . . . 54
SECTION 802. Securities to be Secured in Certain Events . . . 54
SECTION 803. Opinion of Counsel . . . . . . . . . . . . . . . 55
SECTION 804. Successor Corporation Substituted . . . . . . . 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders . . . . . . . . . . . . . . . . . . . . 55
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . 56
SECTION 903. Execution of Supplemental Indentures . . . . . . 57
SECTION 904. Effect of Supplemental Indentures . . . . . . . 58
SECTION 905. Conformity with Trust Indenture Act . . . . . . 58
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . 58
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest . . 58
SECTION 1002. Maintenance of Office or Agency . . . . . . . . 58
SECTION 1003. Money for Securities Payments to Be Held in
Trust . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1004. Limitations on Liens . . . . . . . . . . . . . 60
SECTION 1005. Limitation on Sale and Lease-Back . . . . . . . 62
SECTION 1006. Defeasance of Certain Obligations . . . . . . . 63
SECTION 1007. Statement by Officers as to Default . . . . . . 65
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . 65
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . 65
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . 65
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . 66
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . 66
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . 67
SECTION 1106. Securities Payable on Redemption Date . . . . . 67
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . 67
</TABLE>
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<TABLE>
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . 68
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . 68
SECTION 1203. Redemption of Securities for Sinking Fund . . . 68
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . 69
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . 69
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . 70
EXHIBIT A - FORM OF FACE OF NOTE . . . . . . . . . . . . . . A-1
EXHIBIT B - FORM OF FACE OF SINKING FUND DEBENTURE . . . . . B-1
EXHIBIT C - FORM OF FACE OF ORIGINAL ISSUE DISCOUNT SECURITY C-1
</TABLE>
<PAGE> 9
1
FIRST AMENDED AND RESTATED INDENTURE, dated as of March 1, 1988, between
Kimberly-Clark Corporation, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal office at Dallas, Texas 75261-9100, and Bank of America National
Trust and Savings Association, a national banking association duly incorporated
and existing under the laws of the United States of America, as successor
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered the
Indenture, dated as of January 15, 1983, to Citibank (the "Basic Indenture")
providing for the issuance from time to time of the Company's unsecured
debentures, notes and/or other evidences of indebtedness (herein and therein
called the "Securities"), to be issued in one or more series under and in
accordance with the terms of the Basic Indenture;
WHEREAS, pursuant to the Tripartite Agreement, dated as of December 20,
1984, among the Company, Citibank and the Trustee, effective as of the close of
business on January 15, 1985 (1) Citibank resigned as trustee under the Basic
Indenture, (2) the Company accepted such resignation, (3) the Company appointed
the Trustee as successor trustee under the Basic Indenture, and (4) the Trustee
accepted such appointment;
WHEREAS, pursuant to a Supplemental Indenture No. 1, dated as of June
1, 1987, between the Company and the Trustee the Basic Indenture was amended in
certain respects with respect to the Securities of any series created on or
after the date thereof; and
WHEREAS, Section 901(5) of the Basic Indenture provides, among other
things, that the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into an indenture
supplemental to the Basic Indenture for the purpose of changing or eliminating
any provision of the Basic Indenture, provided that such change or elimination
shall not be effective as to any Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to the
benefit of such provision;
WHEREAS, Section 901(9) of the Basic Indenture provides, among other
things, that the Company may enter into an indenture supplemental to the Basic
Indenture for the purpose of curing any ambiguity or correcting or
supplementing any provisions which may be inconsistent with any other provision
of the Basic Indenture, or making any other provisions with respect to matters
or questions arising under the Basic Indenture, provided that any such action
shall not adversely affect the interests of the Holders of the Securities of
any series in any material respect;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this First Amended and Restated Indenture (the "Indenture") to
<PAGE> 10
2
(1) amend the Basic Indenture, as supplemented pursuant to the Tripartite
Agreement and Supplemental Indenture No. 1, in certain respects with respect to
the Securities of any series created on or after the date hereof and (2)
restate the Basic Indenture as supplemented pursuant to the Tripartite
Agreement and Supplemental Indenture No. 1; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, the Basic Indenture, as supplemented pursuant to the
Tripartite Agreement and Supplemental Indenture No. 1 is hereby further
supplemented and amended and is restated to read in its entirety as follows:
THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with 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; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six and Article Ten, are
defined in those Articles.
<PAGE> 11
3
"ACT", when used with respect to any Holder, has the meaning specified
in Section 104.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with 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.
"ATTRIBUTABLE DEBT" in respect of a Sale and Lease-Back Transaction
means, as of any particular time, the present value (discounted at the rate of
interest implicit in the terms of the lease involved in such Sale and Lease-
Back Transaction, as determined in good faith by the Company) of the obligation
of the lessee thereunder for rental payments (excluding, however, any amounts
required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales, maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges) during
the remaining term of such lease (including any period for which such lease has
been extended or may, at the option of the lessor, be extended).
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate the Securities.
"BOARD OF DIRECTORS" means either the Board of Directors of the Company
or the Executive Committee of the Board of Directors of the Company or any duly
authorized committee of the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by 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", 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.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
<PAGE> 12
4
"COMPANY" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
or any Vice President, and by its Treasurer, any Assistant Treasurer, its
Controller, any Assistant Controller, its Secretary or any Assistant Secretary,
and delivered to the Trustee.
"CONSOLIDATED NET TANGIBLE ASSETS" means, as of any particular time, the
total amount of assets (less applicable reserves) after deducting therefrom (a)
all current liabilities (excluding any thereof which are by their terms
extendible or renewable at the option of the obligor thereon to a time more
than 12 months after the time as of which the amount thereof is being computed
and excluding current maturities of long-term indebtedness), and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangible assets, all as shown in the audited
consolidated balance sheet of the Company and subsidiaries contained in the
Company's then most recent annual report to stockholders, except that assets
shall include an amount equal to the Attributable Debt in respect of any Sale
and Lease-Back Transaction not capitalized on such balance sheet.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee in
the city in which it has its principal place of business at which at any
particular time its corporate trust business shall be administered.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
<PAGE> 13
5
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, the President or any Vice President, and by the Treasurer, any
Assistant Treasurer, the Controller, any Assistant Controller, the Secretary or
any Assistant Secretary, of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or of counsel to the Company, and who shall be reasonably
satisfactory to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Stated Maturity thereof pursuant to Section
502.
"OUTSTANDING", when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) any such Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) any such Securities for whose payment or redemption (a)
money in the necessary amount has been theretofore deposited with the
Trustee (or another trustee satisfying the requirements of Section 609)
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities or (b) U.S. Government
Obligations as contemplated by Section 402 in the necessary amount have
been theretofore deposited with the Trustee (or another trustee
satisfying the requirements of Section 609) in trust for the Holders of
such Securities in accordance with Section 403; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) any such Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) in the case of a series of Securities created on or after
March 1, 1988, all the Securities of which are not to be originally
issued at one time, Securities of such series if and to the extent that,
subsequent to the authentication and delivery thereof, such Securities
are delivered to the Trustee for
<PAGE> 14
6
cancellation by the Company or any agent thereof upon the failure of the
original purchaser thereof to make payment therefor against delivery
thereof;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(a) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be that portion of the
principal amount thereof that could be declared to be due and payable upon the
occurrence of an Event of Default and the continuation thereof pursuant to the
terms of such Original Issue Discount Security as of the date of such
determination, (b) the principal amount of a Security denominated in a foreign
currency shall be the U.S. dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (a)
above) of such Security, and (c) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"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", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
<PAGE> 15
7
"PRINCIPAL PROPERTY" means any mill, manufacturing plant, manufacturing
facility or Timberland, located within the United States of America (other than
its territories and possessions and other than Puerto Rico), having a gross
book value in excess of 1% of Consolidated Net Tangible Assets at the time of
determination thereof and owned by the Company or any Restricted Subsidiary;
provided that the term "Principal Property" shall not include: (a) any such
mill, plant, facility or Timberland which, in the opinion of the Board of
Directors, is not of material importance to the total business conducted by the
Company and its Restricted Subsidiaries taken as a whole, (b) any portion of
such a mill, plant, facility or Timberland similarly found not to be of
material importance to the use or operation thereof or (c) any ores, metals,
fossils, elements, gases, oil, minerals, geothermal resources and rights
thereto and any plant or facility used for the extraction or processing
thereof.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"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 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" means any Subsidiary (a) substantially all of
the property of which is located, or substantially all of the business of which
is carried on, within the United States of America (other than its territories
or possessions and other than Puerto Rico) and (b) which owns a Principal
Property; provided, however, that any Subsidiary which is principally engaged
in financing operations outside the United States of America or which is
principally engaged in leasing or in financing instalment receivables shall not
be deemed a Restricted Subsidiary for purposes of this Indenture.
"SALE AND LEASE-BACK TRANSACTION" has the meaning specified in Section
1005.
<PAGE> 16
8
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such instalment of principal or interest is due and payable.
"SUBSIDIARY" means any corporation more than 50% of the outstanding
voting stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has 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 any contingency.
"TIMBERLAND" means any real property owned by the Company or any
Restricted Subsidiary which contains standing timber which is (or upon
completion of a growth cycle then in process is expected to become) of a
commercial quantity and of merchantable quality, excluding, however, any such
real property which at the time of determination is designated by the Board of
Directors as being held primarily for development or sale, rather than
primarily for the production of timber.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such
<PAGE> 17
9
U.S. Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt with respect to any amount received by
the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
"VICE PRESIDENT", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he 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, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or
<PAGE> 18
10
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in
this Section. If any Securities are denominated in coin or currency
other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of
Securities have taken any action with respect to the Securities of more
than one series as herein described, the principal amount of such
Securities shall be deemed to be that amount of United States dollars
that could be obtained for such principal amount on the basis of the
spot rate of exchange into United States dollars for the currency in
which such Securities are denominated (as evidenced to the Trustee by an
Officers' Certificate upon which the Trustee may exclusively rely) as of
the date the taking of such action by the Holders of such requisite
principal amount is evidenced to the Trustee as provided in this
paragraph.
<PAGE> 19
11
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, attention of
the Treasurer, or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein or
in such Security expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture or any Security provides for
<PAGE> 20
12
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on
<PAGE> 21
13
the Interest Payment Date or Redemption Date, or at the Stated Maturity,
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the forms set
forth in Exhibits A, B or C to this Indenture, or in such other form as shall
be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Bank of America National Trust
and Savings Association, as Trustee
By
-------------------------------------
Authorized Officer
<PAGE> 22
14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, the terms of Securities of the series,
including:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or, in the case of a series of Securities
created on or after March 1, 1988, the manner of calculation of such
rate or rates, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable or, in the case of a series of Securities created on or after
March 1, 1988, the manner of determination of such Interest Payment
Dates, the Regular Record Date, or, in the case of a series of
Securities created on or after March 1, 1988, the manner of
determination of such Regular Record Date, for the interest payable on
any Interest Payment Date;
(5) the place or places where the principal of (and premium,
if any) and interest on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period
or periods within which, the
<PAGE> 23
15
price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(10) in the case of Securities of a series created on or after
March 1, 1988, if other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency (including composite
currencies) in which payment of the principal of (and premium, if any)
and/or interest on the Securities of the series shall be payable;
(11) in the case of Securities of a series created on or after
March 1, 1988, if the principal of (and premium, if any) and/or interest
on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a coin or currency (including
composite currencies) other than that in which the Securities are stated
to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(12) in the case of Securities of a series created on or after
March 1, 1988, if the amount of payments of principal of (and premium,
if any) and/or interest on the Securities of the series may be
determined with reference to an index based on a coin or currency
(including composite currencies) other than that in which the Securities
are stated to be payable, the manner in which such amounts shall be
determined;
(13) in the case of Securities of a series created on or after
June 1, 1987, the terms of which are not established pursuant to
subsection (10), (11) or (12) of this Section 301, the application, if
any, of Section 402 to the Securities of such series; or, in the case of
Securities the terms of which are established pursuant to subsection
(10), (11) or (12) of this Section 301, the adoption and applicability
to such Securities of any terms and conditions similar to those
contained in Section 402;
(14) in the case of Securities of a series created on or after
June 1, 1987, the terms of which are not established pursuant to
subsection (10), (11) or (12) of this Section 301, the application, if
any, of Section 1006 to the Securities of such series; or, in the case
of Securities the terms of which are established pursuant to subsection
(10), (11) or (12) of this Section 301, the adoption and applicability
to such Securities of any terms and conditions similar to those
contained in Section 1006;
<PAGE> 24
16
(15) additional Events of Default with respect to Securities of
the series, if any, other than those set forth herein; and
(16) any other terms of Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 303) set forth
in the Officers' Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and in accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
<PAGE> 25
17
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture;
(c) that the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles;
(d) that the Indenture (to the extent required by law) is
qualified under the Trust Indenture Act;
(e) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles; and
(f) that no consent, approval, authorization, order,
registration or qualification of or with any court or any governmental
agency or body having jurisdiction over the Company is required for the
execution and delivery of such Securities by the Company, except such as
have been obtained (except that no opinion need be expressed as to state
securities or Blue Sky laws).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the time of authentication upon original issuance of
the first Security of such series and cover and apply to all such Securities.
Unless otherwise provided in the form of Securities of any series, each
Security shall be dated the date of its authentication.
<PAGE> 26
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No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and, in the case of a series of
Securities created on or after March 1, 1988 of the like tenor of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of
<PAGE> 27
19
the same series, of any authorized denominations and of a like aggregate
principal amount, Stated Maturity and in the case of a series of Securities
created on or after March 1, 1988, interest rate.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount, Stated Maturity and in the case of a series
of Securities created on or after March 1, 1988, interest rate, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee or if there
shall be delivered to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) there
shall be delivered to the Company and the Trustee such security and indemnity
as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its
<PAGE> 28
20
request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest; provided
that, in the case of a Security of a series created on or after March 1, 1988,
if that Security or its Predecessor Security was originally issued on a date
after a Regular Record Date and before the following Interest Payment Date, the
first payment of interest on such Security will be made on the Interest Payment
Date following the next succeeding Regular Record Date. In the case of a
Security of a series created on or after March 1, 1988, interest payable at
Maturity (other than on a date which is an Interest Payment Date) will be paid
to the same Person to whom the principal amount of the Security is payable.
Any interest on any Security of any series 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 Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on
<PAGE> 29
21
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 Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit 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 therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities 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 manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other
<PAGE> 30
22
purposes whatsoever, whether or not such 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.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever and in the case of a series of Securities created on or after March
1, 1988, may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities of such series previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to (i) any surviving rights of registration of transfer or exchange
of Securities herein expressly provided for, (ii) in the case of a series of
Securities created on or after June 1, 1987, substitution of mutilated,
destroyed, lost or stolen Securities of such series, and (iii) in the case of a
series of Securities created on or after June 1, 1987, rights of Holders to
receive payments of principal (and premium, if any) and the interest thereof,
upon the original stated due dates (except upon acceleration)), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and
<PAGE> 31
23
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities 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,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 403 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Defeasance and Discharge of Securities of Any Series.
(Any reference to Section 402 relating to a series of Securities created
on or prior to June 1, 1987 shall mean Section 403.)
In the case of a series of Securities created on or after June 1, 1987,
if this Section 402 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, then notwithstanding Section 401, (i)
the Company shall be deemed to have paid and discharged the entire indebtedness
on all the Outstanding Securities of that series, (ii) all of the provisions of
this Indenture as it relates to such Outstanding Securities shall no longer be
in effect (except as to
<PAGE> 32
24
the rights of Holders of Securities to receive, solely from the trust funds
described in subparagraph (1) below, payment of the principal of (and premium,
if any) and any installment of principal of (and premium, if any) or interest
on such Securities on the Stated Maturity of such principal or installment of
principal or interest or on any Redemption Date applicable to the Securities of
that series or any mandatory sinking fund payments or analogous payments
applicable to the Securities of that series on the day on which such payments
are due and payable in accordance with the terms of the Indenture and of such
Securities, the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003 and the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including those under Section 607 hereof)
and (iii) the Trustee, at the expense of the Company, shall, upon Company
Request, execute proper instruments acknowledging the same, provided that the
following conditions have been satisfied:
(1) with reference to this Section 402, the Company has
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609), irrevocable (irrespective
of whether the conditions in subparagraphs (2), (3), (4), (5), (6) and
(7) below have been satisfied, but subject to the provisions of Section
403(c) and the last paragraph of Section 1003), as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of that series, (A) lawful
money of the United States in an amount, or (B) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not later
than the opening of business on the due date of any payment referred to
in clause (i) or (ii) of this subparagraph (1) lawful money of the
United States in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge (i) the principal of (and premium, if
any) and each installment of principal of (and premium, if any) and
interest on such Outstanding Securities on the Stated Maturity of such
principal or installment of principal or interest or on the Redemption
Date specified by the Company pursuant to subparagraph (5) below and
(ii) any mandatory sinking fund payments or analogous payments
applicable to Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities;
(2) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(3) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of that series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 501(5) or Section 501(6)
<PAGE> 33
25
or event which with the giving of notice or lapse of time, or both,
would become an Event of Default under Section 501(5) or Section 501(6)
shall have occurred and be continuing on the 91st day after such date;
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Company has received from, or there
has been published by, the Internal Revenue Service a ruling which, in
the opinion of such Counsel, establishes that Holders of the Securities
of that series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred;
(5) if the Company shall have deposited or caused to be
deposited money and/or U.S. Government Obligations in order to pay and
discharge the principal of (and premium, if any) and interest on such
Outstanding Securities on a Redemption Date, the Company shall have
irrevocably notified the Trustee of such Redemption Date and such other
arrangements for such redemption as are satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company;
(6) if the Securities of that series are then listed on any
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit, defeasance and
discharge will not cause such Securities to be delisted; and
(7) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the entire indebtedness on
all Outstanding Securities of any such series as contemplated by this
Section have been complied with.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
402) of the Company under this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 607,
and the obligations of the Trustee under Section 403 and the last paragraph of
Section 1003, shall survive with respect to such series of Securities.
SECTION 403. Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee (or another trustee satisfying the
requirements of Section 609) pursuant to Section 401, all money and U.S.
Government Obligations deposited with the Trustee (or such other trustee)
pursuant to Section 402 or 1006 and all money received by the Trustee (or such
other trustee) in respect of U.S. Government Obligations deposited with the
Trustee
<PAGE> 34
26
(or such other trustee) pursuant to Section 402 or 1006, shall be held in trust
and applied by it, in accordance with the provisions of the 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 (or such
other trustee) may determine, to the Persons entitled thereto, of the principal
of (and premium, if any) and interest for whose payment such money has been
deposited with or received by the Trustee (or such other trustee) or to make
mandatory sinking fund payments or analogous payments as contemplated by Section
402 or 1006, but such money and U.S. Government Obligations need not be
segregated from other funds or securities, as the case may be, except to the
extent required by law.
(b) The Company shall pay and shall indemnify the Trustee (or such other
trustee) against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations deposited pursuant to Section 402 or 1006 or the
interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay or cause to be delivered or paid to
the Company from time to time upon Company Request any money or US. Government
Obligations plus all interest earned thereon held by it as provided in Section
402 or 1006 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount which then would be required to be
deposited for the purpose for which such money or U.S. Government Obligations
were deposited or received.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", with respect to Securities of any series, wherever used
herein, means any one of the following events:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance of any covenant or agreement of the
Company in this Indenture (other than a covenant or agreement a default in
whose performance is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for
<PAGE> 35
27
the benefit of series of Securities other than that series), and
continuance of such default for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal bankruptcy, insolvency,
reorganization or other similar law or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of all or substantially all of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief of any such other decree or order unstayed and
in effect for a period of 120 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal bankruptcy, insolvency, reorganization or
other similar law, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any such law, or the consent by it to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of all or substantially
all of its property, or the making by it of a general assignment for the
benefit of creditors; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if any of the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) of
all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before the Stated Maturity thereof,
the Holders of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
<PAGE> 36
28
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Securities
of any series when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Securities of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
<PAGE> 37
29
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
<PAGE> 38
30
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
Third: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
security and indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer of security and indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to Section 601, the Trustee need not take any action which
might involve it in personal liability or be prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of the Securities of such series; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered
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or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
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(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate security and indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any sinking fund
instalment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such series; and
provided, further, that in
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the case of any default of the character specified in Section 501(4) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 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 with respect to Securities of
such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as
expressly provided therein, and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security and indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit; and
(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
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attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee or any Authenticating Agent makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee or any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee or any Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the
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trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to the Securities of
that series in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the provisions
of Subsection (a) of this Section with respect to the Securities of any series,
the Trustee shall, within 10 days after the expiration of such 90-day period,
transmit by mail to all Holders of Securities of that series, as their names and
addresses appear in the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series if
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates
of interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture
under which the only collateral consists of Securities issued under this
Indenture, provided that there shall be excluded from the operation of this
paragraph (i) the Indenture dated as of August 15, 1967 between the Company
and Bank of America National Trust and Savings Association, as successor
Trustee, under which the Company's 5 7/8% Debentures due August 15, 1992
are outstanding; and (ii) this Indenture with respect to the Securities of
any series other than that series and any indenture or indentures under
which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding if
(A) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to Securities of that series
and one or more other series or the provisions of such other indenture
or indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Securities of that series and
such other series or under such other indenture or indentures, or
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(B) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Securities of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of that
series and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both, of the
Company but may not be at the same time an executive officer of both the
Trustee and the Company; (h) if and so long as the number of directors of
the Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (h) 10% or more
of any class of security of an underwriter for the Company;
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(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25% or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which would
have constituted a conflicting interest under paragraph (6), (7) or (8) of
this Subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after May 15 in each calendar year, the Trustee shall
make a check of its holdings of such securities in any of the
above-mentioned capacities as of such May 15. If the Company fails to make
payment in full of the principal of (or premium, if any) or interest on any
of the Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a prompt
check of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee, with sole or joint
control over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9), inclusive, of
this Subsection shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of paragraph (3) or
(7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to
<PAGE> 48
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a person by one or more banks, trust companies or banking firms, or any
certificate of interest or participation in any such note or evidence of
indebtedness; (ii) an obligation shall be deemed to be "in default" when a
default in payment of principal shall have continued for 30 days or more and
shall not have been cured; and (iii) the Trustee shall not be deemed to be the
owner or holder of (A) any security which it holds as collateral security, as
trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference to the Company,
means every person who, within three years prior to the time as of which
the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a
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corporation, and any individual customarily performing similar functions
with respect to any organization whether incorporated or unincorporated,
but shall not include the chairman of the board of directors.
(e) The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single
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indenture, differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such series
different classes and provided, further, that, in the case of unsecured
evidences of indebtedness, differences in the interest rates or maturity
dates thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
SECTION 609. Corporate Trustee Required, Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, 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 the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) the Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
<PAGE> 51
43
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company with respect to such series. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security
<PAGE> 52
44
Register. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and
<PAGE> 53
45
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within four months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four months'
period, or an amount
<PAGE> 54
46
equal to the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such four months' period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned among the
Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured
<PAGE> 55
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before crediting to the claim of the Trustee anything on account of the receipt
by it from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the Holders and the
holders of other indenture securities dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, but after
crediting thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this paragraph,
with respect to any claim, the term "dividends" shall include any distribution
with respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
whether such distribution is made in cash, securities or other property, but
shall not include any such distribution with respect to the secured portion, if
any, of such claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and proceeds thereof, or (ii) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
four months' period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such four months' period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four months' period; and
(ii) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
<PAGE> 56
48
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in Section (c) of this
Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously
<PAGE> 57
49
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
SECTION 614. Appointment of Authenticating Agent.
In the case of a series of Securities created on or after June 1, 1987, at
any time when any of the Securities of such series remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more such series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series upon issuance, exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having, in the case of an Authenticating Agent appointed with respect to a
series of Securities created (x) on or after June 1, 1987 to and including
February 29, 1988, a combined capital and surplus of not less than $50,000,000,
and (y) in the case of an Authenticating Agent appointed with respect to a
series of Securities created on or after March 1, 1988, a combined capital and
surplus of not less than $10,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examing authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
<PAGE> 58
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Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time with respect to one or more
series of Securities by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency of an Authenticating
Agent with respect to one or more series of Securities by giving written notice
thereof 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 such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition the Trustee's certificate of authentication, an alternate certificate
of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
As Trustee
By
---------------------------
As Authenticating Agent
By
---------------------------
Authorized Officer
<PAGE> 59
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding December 31 or June 30, as
the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable
proof that each such applicant has owned a security for a period of at
least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at
its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to
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each Holder whose name and address appear in the information preserved at the
time by the Trustee in accordance with Section 702 (a) a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interest of the Holders or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of 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 the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year 1983,
the Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 with
respect to:
(1) its eligibility under Section 609 and its qualifications under
Section 608, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may
elect) to
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report such advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the Securities Outstanding
on the date of such report;
(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 613(b)(2), (3), (4)
or (6);
(4) the property and funds, if any, physically in the possession of
the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee has not
previously reported; and
(6) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on property or funds
held or collected by it as Trustee and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Securities Outstanding at
such time, such report to be transmitted within 90 days after such time.
(c) 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 any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and
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54
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., on Certain Terms.
Nothing in this Indenture or in any of the Securities shall prevent any
consolidation of the Company with or merger of the Company into any other
corporation or shall prevent any sale or transfer of all or substantially all of
the property and assets of the Company to any other corporation; provided,
however, and the Company covenants and agrees, that any such consolidation,
merger, sale or transfer shall be upon the condition that the due and punctual
payment of the principal of, and premium, if any, and interest on, all the
Securities according to their tenor, and the due and punctual performance and
observance of all the terms, covenants and conditions of this Indenture to be
kept or performed by the Company shall, by an indenture supplemental hereto,
executed and delivered to the Trustee, be assumed by the corporation formed by
such consolidation or into which the Company shall have merged or the
corporation which shall have acquired by sale or transfer all or substantially
all of the property and assets of the Company.
SECTION 802. Securities to be Secured in Certain Events.
If, upon any such consolidation or merger, or upon any such sale or
transfer, any Principal Property of the Company or of any Restricted Subsidiary
or any
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shares of capital stock or indebtedness of any Restricted Subsidiary, owned
immediately prior thereto, would thereupon become subject to any mortgage,
security interest, pledge or lien securing any indebtedness for borrowed money
of, or guaranteed by, such other corporation (other than any mortgage, security
interest, pledge or lien permitted by subsection (a) or (b) of Section 1004),
the Company, prior to such consolidation, merger, sale or transfer, will by
indenture supplemental hereto secure the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities (together
with, if the Company shall so determine, any other indebtedness of, or
guaranteed by, the Company or any Restricted Subsidiary and then existing or
thereafter created) equally and ratably with (or, at the option of the Company,
prior to) the indebtedness secured by such mortgage, security interest, pledge
or lien.
SECTION 803. Opinion of Counsel.
The Trustee may receive and shall, subject to the provisions of Section 601
of this Indenture, be fully protected in relying upon an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed under the foregoing
Section 801 or Section 802 complies with the foregoing conditions and provisions
of this Article.
SECTION 804. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other corporation or any sale or transfer of all or substantially all of the
property and assets of the Company in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such sale or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor corporation had been named as the Company
herein, and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for
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the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to Securities
of all or any series; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 663 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of each such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount
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thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1007, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1007, or the deletion of this proviso, in accordance with
the requirements of Sections 611 (b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities of that series and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such
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designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such
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Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee (or in the case of a series of
Securities created on or after June 1, 1987, another trustee satisfying the
requirements of Section 609) or any Paying Agent or received by the Trustee (or
such other trustee) in respect of U.S. Government Obligations deposited with
the Trustee (or such other trustee) pursuant to Section 402 or 1006, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee (or such
other Trustee) or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee (or such other trustee) or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
City of New York, New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Limitations on Liens.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, issue, assume or guarantee any indebtedness for borrowed money
(referred to in this Article as "indebtedness") secured by a mortgage, security
interest, pledge or lien (referred to in this Article as "mortgage" or
"mortgages") of or upon any Principal Property, or shares of capital stock or
indebtedness of any Restricted Subsidiary, whether such Principal Property,
shares or indebtedness are owned at the date of this Indenture or thereafter
acquired, without making effective provision whereby the Securities (together
with, if the Company shall so determine, any other indebtedness issued, assumed
or guaranteed by the Company or any Restricted Subsidiary and then existing or
thereafter created) shall be secured by such mortgage equally and ratably with
(or, at the option of the Company, prior to) such indebtedness, so long as such
indebtedness shall be so secured; provided that the foregoing shall not apply
to any of the following:
(1) mortgages of or upon any property acquired, constructed
or improved by, or of or upon any shares of capital stock or
indebtedness acquired by, the Company or any Restricted Subsidiary after
the date of this Indenture (A) to secure the payment of all or any part
of the purchase price of such
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property, shares of capital stock or indebtedness upon the acquisition thereof
by the Company or any Restricted Subsidiary, or (B) to secure any indebtedness
issued, assumed or guaranteed by the Company or any Restricted Subsidiary prior
to, at the time of, or within 360 days after (i) in the case of property, the
later of the acquisition, completion of construction (including any
improvements on existing property) or commencement of commercial operation of
such property or (ii) in the case of shares of capital stock or indebtedness,
the acquisition of such shares of capital stock or indebtedness, which
indebtedness is issued, assumed or guaranteed for the purpose of financing or
refinancing all or any part of the purchase price of such property, shares of
capital stock or indebtedness and, in the case of property, the cost of
construction thereof or improvements thereon, provided that in the case of any
such acquisition, construction or improvement the mortgage shall not apply to
any property, shares of capital stock or indebtedness theretofore owned by the
Company or any Restricted Subsidiary, other than, in the case of any such
construction or improvement, any theretofore unimproved or substantially
unimproved real property on which the property so constructed or the
improvement is located;
(2) mortgages of or upon any property, shares of capital stock or
indebtedness existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary;
(3) mortgages of or upon any property of a corporation existing at
the time such corporation is merged with or into or consolidated with the
Company or any Restricted Subsidiary or existing at the time of a sale or
transfer of the properties of a corporation as an entirety or substantially as
an entirety to the Company or any Restricted Subsidiary;
(4) mortgages of or upon any property of, or shares of capital stock
or indebtedness of, a corporation existing at the time such corporation becomes
a Restricted Subsidiary;
(5) mortgages to secure indebtedness of any Restricted Subsidiary to
the Company or to another Restricted Subsidiary or to secure indebtedness of
the Company to any Restricted Subsidiary;
(6) mortgages 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 political subdivision, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any indebtedness
incurred or guaranteed for the purpose of financing or refinancing all or any
part of the purchase price of the property, shares of capital stock or
indebtedness subject to such mortgages, or the cost of constructing or
improving the property subject to such mortgages (including, without
limitation, mortgages incurred in connection with pollution control, industrial
revenue or similar financings); and
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(7) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
mortgage existing at the date of this Indenture or any mortgage referred
to in the foregoing Clauses (1) through (6), inclusive, provided,
however, that the principal amount of indebtedness secured thereby shall
not exceed the principal amount of indebtedness so secured at the time
of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the property
(plus improvements and construction on such property), shares of capital
stock or indebtedness which was subject to the mortgage so extended,
renewed or replaced.
(b) Notwithstanding the provisions of subsection (a) of this Section,
the Company or any Restricted Subsidiary may, without equally and ratably
securing the Securities, issue, assume or guarantee indebtedness secured by a
mortgage not excepted by Clauses (1) through (7) of such subsection (a), if the
aggregate amount of such indebtedness, together with all other indebtedness of,
or indebtedness guaranteed by, the Company and its Restricted Subsidiaries
existing at such time and secured by mortgages not so excepted and the
Attributable Debt in respect of Sale and Lease-Back Transactions existing at
such time (other than Sale and Lease-Back Transactions permitted by Clause (i)
of Section 1005 and other than Sale and Lease-Back Transactions the proceeds of
which have been applied in accordance with Clause (iii) of Section 1005), does
not at the time exceed 5% of Consolidated Net Tangible Assets.
(c) For purposes of this Article (i) the sale, mortgage or other
transfer of timber in connection with an arrangement under which the Company or
any Restricted Subsidiary is obligated to cut such timber or a portion thereof
in order to provide the transferee with a specified amount of money however
determined and (ii) transactions entered into pursuant to Section 168(f)(8) of
the Internal Revenue Code of 1954, as amended, or any successor or similar
provision which may hereafter be enacted, shall not be deemed to create any
indebtedness secured by a mortgage or constitute a mortgage securing any
indebtedness or constitute a Sale and Lease-Back Transaction.
SECTION 1005. Limitation on Sale and Lease-Back.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any arrangement with any Person providing for the leasing by the
Company or any Restricted Subsidiary of any Principal Property, whether owned
at the date of this Indenture or thereafter acquired (except for temporary
leases for a term, including any renewal thereof, of not more than three years
and except for leases between the Company and any Restricted Subsidiary,
between any Restricted Subsidiary and the Company or between Restricted
Subsidiaries), which property has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such Person with the intention of
taking back a lease of such property (herein referred to as a "Sale and
Lease-Back Transaction") unless (i) the Company or such Restricted Subsidiary
would (at the time of entering into such arrangement) be entitled pursuant to
clause
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(1) or (6) of Section 1004(a), without equally and ratably securing the
Securities, to issue, assume or guarantee indebtedness secured by a mortgage on
such property, or (ii) the Company or such Restricted Subsidiary would (at the
time of entering into such arrangement) be entitled pursuant to Section
1004(b), without equally and ratably securing the Securities, to issue, assume
or guarantee indebtedness secured by a mortgage on such property in an amount
at least equal to the Attributable Debt in respect of such Sale and Lease-Back
Transaction or (iii) the Company shall apply, within 360 days of the effective
date of any such arrangement, an amount equal to the Attributable Debt in
respect of such Sale and Lease-Back Transaction to the prepayment or retirement
(other than any mandatory prepayment or retirement) of indebtedness incurred or
assumed by the Company or any Restricted Subsidiary (other than indebtedness
owned by the Company or any Restricted Subsidiary) which by its terms matures
at or is extendible or renewable at the option of the obligor to a date more
than twelve months after the date of the creation of such indebtedness.
SECTION 1006. Defeasance of Certain Obligations.
(Any references to Section 1006 relating to a series of Securities
created on or prior to June 1, 1987 shall mean Section 1007.) In the case of
Securities created on or after June 1, 1987, if this Section 1006 is specified,
as contemplated by Section 301, to be applicable to Securities of any series,
the Company may omit to comply with any term, provision or condition set forth
in Sections 1004 and 1005, and any such omission with respect to Sections 1004
and 1005 shall not be an Event of Default, in each case with respect to the
Securities of that series, provided that the following conditions have been
satisfied:
(1) With reference to this Section 1006, the Company has
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609) irrevocably (irrespective of
whether the conditions in subparagraphs (2), (3), (4), (5), (6), (7) and
(8) below have been satisfied, but subject to the provisions of Section
403(c) and the last paragraph of Section 1003), as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of that series, (A) lawful
money of the United States in an amount, or (B) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not later
than the opening of business on the due date of any payment referred to
in clause (i) or (ii) of this subparagraph (1) lawful money of the
United States in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge (i) the principal of (and premium, if
any) and each installment of principal (and premium, if any) and
interest on the Outstanding Securities of that series on the Stated
Maturity of such principal or installment of principal or interest or on
the Redemption Date specified by the Company pursuant to paragraph (6)
below and (ii) any mandatory sinking fund payments or
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analogous payments applicable to Securities of such series on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities;
(2) Such deposit shall not cause the Trustee with respect to
the Securities of that series to have a conflicting interest as defined
in Section 608 and for purposes of the Trust Indenture Act with respect
to the Securities of any series or, if such a conflicting interest is
determined or perceived to exist, the Trustee within 90 days of such
deposit shall have filed with the Commission an application for a
determination that its trusteeship as to Securities of other series or
another indenture is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as trustee
as to such other Securities or other indenture;
(3) Such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) No Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of that series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 501(5) or Section 501(6) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default under
Section 501(5) or Section 501(6) shall have occurred and be continuing
on the 91st day after such date;
(5) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would have been the
case if such deposit and defeasance had not occurred;
(6) If the Company shall have deposited or caused to be
deposited money and/or U.S. Government Obligations in order to pay and
discharge the principal of (and premium, if any) and interest on such
Outstanding Securities on a Redemption Date, the Company shall have
irrevocably notified the Trustee of such Redemption Date and such other
arrangements as for such redemption as are satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company;
(7) If the Securities of that series are then listed on any
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit and defeasance will
not cause such Securities to be delisted; and
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(8) The Company shall have 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 1007. Statement by Officers as to Default.
(Any reference to Section 1007 relating to a series of Securities
created on or prior to June 1, 1987 shall mean Section 1008.)
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of Section 1004 or 1005 and if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they have knowledge.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1004 or 1005 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least 66 2/3% in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 45
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such
<PAGE> 74
66
redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
<PAGE> 75
67
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, on Company Request, by the Trustee in
the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Regular or Special Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security or
Securities of the same series and of a like interest rate, Stated Maturity, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
<PAGE> 76
68
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any Security previously called for redemption) and (2) may apply as a
credit Securities of a series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms
of such Series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the
<PAGE> 77
69
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[Corporate Seal]
ATTEST:
KIMBERLY-CLARK CORPORATION
/s/ DONALD M. CROOK By /s/ W. ANTHONY GAMRON
- ---------------------------------- -------------------------------
Donald M. Crook W. Anthony Gamron
Secretary Treasurer
[Corporate Seal]
ATTEST:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
/s/ PEET SAARET By /s/ ROMAN M. ARIAS
- ---------------------------------- -------------------------------
Roman M. Arias
Trust Officer
<PAGE> 78
70
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
On the 20 day of May, 1988, before me personally came W. Anthony Gamron,
to me known, who, being by me duly sworn, did depose and say that he is the
Treasurer of Kimberly-Clark Corporation, one of the corporations described in
and which executed the foregoing instrument; that he knows seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
CLAIRENE JORELLA
-----------------------------------
Notary Public
My commission expires July 30, 1989.
STATE OF CALIFORNIA )
) ss:
COUNTY OF SAN FRANCISCO )
On the 19 day of May, 1988, before me personally came Roman M. Arias,
to me known, who, being by me duly sworn, did depose and say that he is Trust
Officer of Bank of America National Trust and Savings Association, one of the
corporations described in and which executed the foregoing instrument; that he
knows seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
F. ROCKETT
-----------------------------------
Notary Public
My commission expires November 12,
1988.
<PAGE> 79
A-1
EXHIBIT A
(Form 1)
[FORM OF FACE OF NOTE]
KIMBERLY-CLARK CORPORATION
% NOTE DUE
No. $
KIMBERLY-CLARK CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the "Company", which term
shall include any successor corporation), for value received, hereby promises
to pay to , or registered assigns, the principal sum of Dollars
on , and to pay interest thereon from or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on and in each year, commencing , at
the rate of % per annum, until the principal hereof is paid or made
available for payment. 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 Security (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 or
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(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 Securities of this
series 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 Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in , in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
<PAGE> 80
A-2
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, Kimberly-Clark Corporation has caused this
instrument to be duly executed under its corporate seal.
DATED:
KIMBERLY-CLARK CORPORATION
By
-----------------------------
President
ATTEST:
- -----------------------------
Secretary
Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as successor
Trustee
By
-----------------------------
Authorized Officer
Form of Reverse of Note.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under a First Amended and Restated Indenture dated as of March 1,
1988 (herein called the "Indenture"), between the Company and Bank of America
National Trust and Savings Association, successor Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
<PAGE> 81
A-3
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
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $ .
The Securities of this series are subject to redemption upon not less
than 30 days' notice by mail, at any time [on or after ,] as a whole
or in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed during the 12-
month period beginning of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
------ ------------ ------ ------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Regular or Special Record Dates referred to on the face hereof, all as
provided in the Indenture.
[Notwithstanding the foregoing, the Company may not, prior to ,
redeem any Securities of this series pursuant to the preceding paragraph as a
part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice)
of less than % per annum.]
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
[The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants, in
each case upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Security.]
<PAGE> 82
A-4
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of 66 2/3% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
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 Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
<PAGE> 83
A-5
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE> 84
B-1
EXHIBIT B
(Form 2)
[FORM OF FACE OF SINKING FUND DEBENTURE]
KIMBERLY-CLARK CORPORATION
% Sinking Fund Debenture due
No. $
KIMBERLY-CLARK CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the "Company", which term
shall include any successor corporation), for value received, hereby promises
to pay to , or registered assigns, the principal sum of
Dollars on , and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on and in each year,
commencing , at the rate of % per annum, until the
principal hereof is paid or made available for payment. 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 Security (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 or (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (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 Securities of this series 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
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in , in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
<PAGE> 85
B-2
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, Kimberly-Clark Corporation has caused this
instrument to be duly executed under its corporate seal.
DATED:
KIMBERLY-CLARK CORPORATION
By
-----------------------------------
President
ATTEST:
- ---------------------------------
Secretary
Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Successor
Trustee
By
-----------------------------------
Authorized Officer
Form of Reverse of Sinking Fund Debenture.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under a First Amended and Restated Indenture dated as of March 1,
1988 (herein called the "Indenture"), between the Company and Bank of America
National Trust and Savings Association, successor Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
<PAGE> 86
B-3
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
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $ .
The Securities of this series are subject to redemption upon not less
than 30 days' notice by mail, (1) on in each year commencing with
the year and ending with the year through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2) at any time [on or after ,] as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed during the 12-month period
beginning of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
------ ------------ ------ ------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular or Special Record Dates referred to on the face hereof, all as provided
in the Indenture.
[Notwithstanding the foregoing, the Company may not, prior to ,
redeem any Securities of this series pursuant to Clause (2) of the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than % per annum.]
The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the year
of [not less than] $ [("mandatory sinking fund") and not more than
$ aggregate principal amount of Securities of this series]. Securities of
this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made in the
[inverse] order in which they become due.
<PAGE> 87
B-4
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.
[The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants, in
each case upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Security.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of 66 2/3% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
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 Security at the times, place and rate, and in the coin or
currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth,
<PAGE> 88
B-5
Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE> 89
C-1
EXHIBIT C
(Form 3)
[FORM OF FACE OF ORIGINAL ISSUE DISCOUNT SECURITY]
For purposes of Section 1232 of the United States Internal Revenue Code
of 1954, as amended, the issue price of this Security is % of its
principal amount and the issue date is , 19 .
For purposes of Sections 1273 and 1275 of the Internal Revenue Code of
1986, as amended, the amount of original issue discount of this Security is %
of its principal amount, the issue date is , 19 , [and] the yield
to maturity is % [, the method used to determine the yield is and the
amount of original issue discount applicable to the short accrual period of ,
19 to , 19 is % of the principal amount of this Security].
KIMBERLY-CLARK CORPORATION
%[ ] DUE
No. $
KIMBERLY-CLARK CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the "Company", which term
shall include any successor corporation), for value received, hereby promises
to pay to , or registered assigns, the principal sum of
Dollars on , and to pay interest thereon from or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on and in each year, commencing , at
the rate of % per annum, until the principal hereof is paid or made
available for payment. 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 Security (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 or (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (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 Securities of this series 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 Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
<PAGE> 90
C-2
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in , in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, Kimberly-Clark Corporation has caused this
instrument to be duly executed under its corporate seal.
DATED:
KIMBERLY-CLARK CORPORATION
By
---------------------------------
President
ATTEST:
- --------------------------
Secretary
Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Successor
Trustee
By
-------------------------------
Authorized Officer
<PAGE> 91
C-3
Form of Reverse of Original Issue Discount Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under a First Amended and Restated Indenture, dated as of March 1,
1988 (herein called the "Indenture"), between the Company and Bank of America
National Trust and Savings Association, successor Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $ .
The Securities of this series are subject to redemption upon not less
than 30 days' notice by mail, at any time, as a whole or in part, at the
election of the Company, at a Redemption Price equal to 100% of the principal
amount, together in the case of any such redemption with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Regular or Special Record Dates referred to on the
face hereof, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to (a) that portion of
the principal amount equal to the initial public offering price of this
Security plus accrued amortization of the original issue discount calculated
using the "interest method" (computed in accordance with generally accepted
accounting principles in effect on ) from , to the
date of such declaration and (b) any accrued interest to the date of such
declaration. Upon payment of (i) the amount of principal so declared due and
payable and (ii) interest on any overdue principal (to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest on the
Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
<PAGE> 92
C-4
the consent of the Holders of 66 2/3% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
[The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants, in
each case upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Security.]
No reference herein to the Indenture and no provision of this Security
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 Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
<PAGE> 93
C-5
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE> 1
EXHIBIT 4.5
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
This INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Instrument"), by and among Kimberly-Clark Corporation, a Delaware corporation
(the "Company"), The First National Bank of Chicago, a national banking
association (the "Successor Trustee"), and Bank of America National Trust and
Savings Association (the "Resigning Trustee") is dated as of December 12, 1995.
WHEREAS, there are presently issued and outstanding $50,132,000 in
aggregate principal amount of the Company's 9-1/2% Sinking Fund Debentures due
February 1, 2018, $100,000,000 in aggregate principal amount of the Company's
9-1/8% Notes due June 1, 1997, $100,000,000 in aggregate principal amount of
the Company's 9% Notes due August 1, 2000, $200,000,000 in aggregate principal
amount of the Company's 8-5/8% Notes due May 1, 2001, $200,000,000 in aggregate
principal amount of the Company's 7-7/8% Debentures due February 1, 2023,
$100,000,000 in aggregate principal amount of the Company's 6-7/8% Debentures
due February 15, 2014 and $40,000,000 in aggregate principal amount of the
Company's 7.55% Debentures due June 1, 2014(collectively, the "Securities"), in
each case under the First Amended and Restated Indenture dated as of March 1,
1988, as amended by the First and Second Supplemental Indentures thereto, dated
as of November 6, 1992 and May 25, 1994, respectively, between the Company and
the Resigning Trustee (the "Indenture"); and
WHEREAS, the Resigning Trustee wishes to resign as Trustee under the
Indenture (the "Trustee"), the Company wishes to appoint the Successor Trustee
to succeed the Resigning Trustee as Trustee, and the Successor Trustee wishes
to accept its appointment as Trustee;
NOW, THEREFORE, the Company, the Successor Trustee and the Resigning
Trustee, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
agree as follows:
I. The Resigning Trustee
Section 1.1. Pursuant to Section 610(b) of the Indenture, the
Resigning Trustee hereby resigns as Trustee thereunder.
Section 1.2. The Resigning Trustee hereby represents and warrants
to the Successor Trustee that:
(a) To the best of its knowledge, no "Event of Default" (as
defined in Section 501 of the Indenture) and no event which,
after notice or lapse of time or both, would become an Event
of Default, has occurred and is continuing under the
Indenture;
(b) To the best of its knowledge, no covenant or condition
contained in the Indenture has been waived by the Resigning
Trustee or by the Holders of the percentage of aggregate
principal amount of the Securities required by the Indenture
to effect any such waiver;
(c) To the best of its knowledge, there is no action, suit, or
proceeding pending or threatened against the Resigning Trustee
before any court or governmental authority arising out of any
action of or omission by the Resigning Trustee as Trustee;
(d) The Resigning Trustee has furnished, or as promptly as
practicable will furnish, to the Successor Trustee originals
of all documents relating to the trust created by the
Indenture and all other information in its possession relating
to the
<PAGE> 2
administration and status thereof, provided that the Successor
Trustee will make available to the Resigning Trustee as
promptly as practicable following the request of the Resigning
Trustee any such original documents which the Resigning
Trustee may require in order to defend against any action,
suit, or proceeding against the Resigning Trustee as Trustee
or which the Resigning Trustee may need for any other proper
purpose;
(e) The Resigning Trustee has not delegated to any other party any
of its duties as Trustee, Security Registrar, or Paying Agent,
and has not appointed any Authenticating Agent; and
(f) The Resigning Trustee has lawfully and fully discharged its
duties as Trustee.
Section 1.3. The Resigning Trustee hereby assigns, transfers,
delivers, and confirms to the Successor Trustee all right, title, and interest
of the Resigning Trustee in and to the trust under the Indenture and all of its
rights, powers, and trusts as Trustee thereunder. The Resigning Trustee shall
execute and deliver such further instruments and shall do such other things as
the Successor Trustee may reasonably require to more fully and certainly vest
and confirm in the Successor Trustee all the rights, trusts, and powers hereby
assigned, transferred, delivered, and confirmed to the Successor Trustee.
Section 1.4. The Resigning Trustee agrees to indemnify the
Successor Trustee against any loss, liability, or expense (including the costs
and expenses of defending against any claim of liability) incurred by the
Successor Trustee by reason of any negligence or bad faith on the part of the
Resigning Trustee or its agents, employees, or officers in the performance of
its duties under the Indenture while acting as Trustee thereunder. The
Successor Trustee, upon learning of any claim for which the Successor Trustee
may seek indemnity hereunder, shall promptly notify the Resigning Trustee of
such claim. The Resigning Trustee shall not be obliged to indemnify the
Successor Trustee with respect to the defense of any such claim which the
Successor Trustee voluntarily settles without the prior written consent of the
Resigning Trustee.
II. The Company
Section 2.1. The Chief Executive Officer of the Company has been
duly authorized to: (a) appoint the Successor Trustee as Trustee, and (b)
execute and deliver such agreements and other instruments as may be necessary
or desirable to effectuate the succession of the Successor Trustee as Trustee.
Section 2.2. The Company hereby accepts the Resigning Trustee's
resignation as Trustee, appoints the Successor Trustee as Trustee, and confirms
to the Successor Trustee all the rights, powers, and trusts of the Trustee.
The Company shall execute and deliver such further instruments and do such
other things as the Successor Trustee may reasonably require to more fully and
certainly vest and confirm in the Successor Trustee all the rights, trusts, and
powers hereby assigned, transferred, delivered, and confirmed to the Successor
Trustee.
Section 2.3. Promptly after the execution and delivery of this
Instrument, the Company shall cause a notice, the form of which is annexed
hereto as Exhibit A, to be sent to each Holder of the Securities in accordance
with the provisions of Section 610(f) of the Indenture.
Section 2.4. The Company hereby represents and warrants to the
Successor Trustee that:
2
<PAGE> 3
(a) It is a duly incorporated and existing corporation in good
standing under the laws of the State of Delaware and has full power
and authority to execute and deliver this Instrument;
(b) This Instrument has been duly and validly authorized,
executed, and delivered by the Company and constitutes a legal, valid,
and binding obligation of the Company;
(c) To the extent required by the Securities Act of 1933, as
amended, the Securities have been duly registered under such Act, and
such registrations have become effective;
(d) The Indenture complies with the Trust Indenture Act of 1939,
as amended, has been duly qualified thereunder, and is a legal, valid,
and binding obligation of the Company;
(e) The Company has performed or fulfilled each covenant,
agreement, and condition on its part to be performed or fulfilled
under the Indenture;
(f) There is no Event of Default on the part of the Company and no
event which, after notice or lapse of time or both, would become an
Event of Default on the part of the Company under the Indenture;
(g) The Company has not appointed any Registrar or Paying Agent
other than the Resigning Trustee; and
(h) The Company will continue to perform its obligations under the
Indenture.
III. The Successor Trustee
Section 3.1. The Successor Trustee hereby represents and warrants
to the Resigning Trustee and to the Company that the Successor Trustee is
qualified under Section 609 of the Indenture and Section 310 of the Trust
Indenture Act of 1939, as amended, to act as Trustee.
Section 3.2. The Successor Trustee hereby accepts its appointment
as Trustee and shall hereby be vested with all the authority, rights, powers,
trusts, immunities, duties, and obligations of the Trustee.
Section 3.3. The Successor Trustee agrees to indemnify the
Resigning Trustee against any loss, liability, or expense (including the costs
and expenses of defending against any claim of liability) incurred by the
Resigning Trustee by reason of any negligence or bad faith on the part of the
Successor Trustee or its agents, employees, or officers in the performance of
its duties under the Indenture while acting as Trustee thereunder. The
Resigning Trustee, upon learning of any claim for which the Resigning Trustee
may seek indemnity hereunder, shall promptly notify the Successor Trustee of
such claim. The Successor Trustee shall not be obliged to indemnify the
Resigning Trustee with respect to the defense of any such claim which the
Resigning Trustee voluntarily settles without the prior written consent of the
Successor Trustee.
IV. Miscellaneous
Section 4.1. Except as otherwise expressly provided or unless the
context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meanings
3
<PAGE> 4
assigned to them in the Indenture.
Section 4.2. This Instrument and the resignation, appointment, and
acceptance effected hereby shall be effective as of the close of business on
the date first above written upon the execution and delivery hereof by each of
the parties hereto.
Section 4.3. Notwithstanding the resignation of the Resigning
Trustee effected hereby, the Resigning Trustee shall remain entitled under
Section 607 of the Indenture to receive compensation, reimbursement, and
indemnity in connection with its trusteeship under the Indenture.
Section 4.4. This Instrument shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles regarding conflict of laws.
Section 4.5. This Instrument may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Instrument of
Resignation, Appointment, and Acceptance to be duly executed, with their
respective seals affixed hereto, and duly attested, all as of the day and year
first above written.
KIMBERLY-CLARK CORPORATION
[Corporate Seal]
By: W. Anthony Gamron
Title: Vice President and Treasurer
Attest:
By: Clairene Jorella
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, as Successor Trustee
[Corporate Seal]
By: Donna Fanning
Title: Assistant Vice President
Attest:
By: Georgia Tsirbas
Title: Assistant Vice President
4
<PAGE> 5
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Trustee
[Corporate Seal]
By: Cecil Bobey
Title: Vice President
Attest:
By: Jennifer Holder
Title: Vice President
STATE OF TEXAS )
) ss.
COUNTY OF DALLAS )
On October 31, 1995, before me, the undersigned Notary Public in and for said
State, personally appeared W. Anthony Gamron, personally known to me, or who
proved to me on the basis of satisfactory evidence, to be a Vice President and
Treasurer, and Clairene Jorella, personally known to me, or who proved to me on
the basis of satisfactory evidence, to be a Assistant Secretary, of
Kimberly-Clark Corporation, the corporation that executed the within
Instrument, and who acknowledged to me that they were duly authorized to
execute under the seal of such corporation, and did in fact execute under the
seal of such corporation, the within Instrument on behalf of such corporation.
WITNESS my hand and official seal.
(Seal) Denise L. Bunch
Notary Public
5
<PAGE> 6
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
On November 1, 1995, before me, the undersigned Notary Public in and for said
State, personally appeared D. Fanning, personally known to me, or who proved to
me on the basis of satisfactory evidence, to be a Assistant Vice President, and
Georgia Tsirbas, personally known to me, or who proved to me on the basis of
satisfactory evidence, to be a Assistant Vice President, of The First National
Bank of Chicago, the association that executed the within Instrument, and who
acknowledged to me that they were duly authorized to execute under the seal of
such association, and did in fact execute under the seal of such association,
the within Instrument on behalf of such association.
WITNESS my hand and official seal.
(Seal) Notary Public
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN FRANCISCO )
On November 3, 1995, before me, the undersigned Notary Public in and for said
State, personally appeared Cecil Bobey, personally known to me, or who proved
to me on the basis of satisfactory evidence, to be a Vice President, and
Jennifer Holder, personally known to me, or who proved to me on the basis of
satisfactory evidence to be a Vice President, of Bank of America National Trust
and Savings Association, the association that executed the within Instrument,
and who acknowledged to me that they were duly authorized to execute under the
seal of such association, and did in fact execute under the seal of such
association, the within Instrument on behalf of such association.
WITNESS my hand and official seal.
(Seal) Claudia J. Sun
Notary Public
6
<PAGE> 7
EXHIBIT A
NOTICE TO HOLDERS
OF
KIMBERLY-CLARK CORPORATION
9-1/2% SINKING FUND DEBENTURES DUE FEBRUARY 1, 2018 (CUSIP 494368AJ2),
9-1/8% NOTES DUE JUNE 1, 1997 (CUSIP 494368AG8),
9% NOTES DUE AUGUST 1, 2000 (CUSIP 494368AL7),
8-5/8% NOTES DUE MAY 1, 2001 (CUSIP 494368AN3),
7-7/8% DEBENTURES DUE FEBRUARY 1, 2023 (CUSIP 494368AP5),
6-7/8% DEBENTURES DUE FEBRUARY 15, 2014 (CUSIP 494368AQ6) AND
7.55% DEBENTURES DUE JUNE 1, 2014
NOTICE IS HEREBY GIVEN by KIMBERLY-CLARK CORPORATION (the "Company") that Bank
of America National Trust and Savings Association has resigned as Trustee under
the First Amended and Restated Indenture dated as of March 1, 1988, as amended
by the First and Second Supplemental Indentures thereto, dated as of November
6, 1992 and May 25, 1994, respectively (the "Indenture"), pursuant to which the
Company's 9-1/2% Sinking Fund Debentures due February 1, 2018, 9-1/8% Notes due
June 1, 1997, 9% Notes due August 1, 2000, 8-5/8% Notes due May 1, 2001, 7-7/8%
Debentures due February 1, 2023, 6-7/8% Debentures due February 15, 2014 and
7.55% Debentures due June 1, 2014 (collectively, the "Securities") were issued
and are outstanding, and as the office or agency of the Company where the
Securities may be presented and surrendered for payment and registration of
transfer or exchange, and where notices and demands to or upon the Company in
respect of the Securities and the Indenture may be served, such resignation to
become effective as of the close of business on December 12, 1995.
The Company has appointed The First National Bank of Chicago, having its
corporate trust office at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126, as successor Trustee under the Indenture, and First
Chicago Trust Company of New York,, having its office at 14 Wall Street, 8th
Floor-Window 2, New York, New York 10005, as the Company's office or agency in
the Borough of Manhattan, The City of New York, for the payment, registration,
transfer and exchange of Securities and for the receipt of notices and demands
to or upon the Company in respect of the Securities or the Indenture, which
appointments have been accepted and will become effective as of the close of
business on December 12, 1995.
KIMBERLY-CLARK CORPORATION
351 Phelps Drive
Irving, Texas 75038
7
<PAGE> 1
EXHIBIT 5
February 2, 1998
Kimberly-Clark Corporation
P. O. Box 619100
Dallas, Texas 75261-9100
Re: Registration Statement on Form S-3
Gentlemen:
I am Senior Vice President - Law and Government Affairs of Kimberly-Clark
Corporation (the "Corporation"), and have acted as counsel in connection with
(i) the registration statement being filed by the Corporation with the
Securities and Exchange Commission (the "Commission") with regard to the
registration under the Securities Act of 1933, as amended (the "Act"), of
$500,000,000 aggregate principal amount of debt securities of the Corporation
(the "Debt Securities"), and (ii) the First Amended and Restated Indenture dated
as of March 1, 1988, as supplemented by the First Supplemental Indenture thereto
dated as of November 6, 1992, and the Second Supplemental Indenture thereto
dated as of May 25, 1994 (the "Indenture"), between the Corporation and The
First National Bank of Chicago, as successor trustee (the "Trustee"), pursuant
to which Indenture the Debt Securities are to be issued. The registration
statement (including the exhibits thereto and all documents or portions thereof
incorporated therein by reference) is hereinafter collectively called the
"Registration Statement."
I am familiar with the proceedings to date with respect to the proposed issuance
and sale of the Debt Securities. In addition, in connection with this opinion, I
have examined an executed copy of the Registration Statement and the Indenture,
and such corporate and other documents and records, and certificates of officers
of the Corporation, as I have deemed necessary for the purposes of this opinion.
In stating my opinion I have assumed the genuineness of all signatures of, and
the authority of, persons signing any documents or records on behalf of parties
other than the Corporation, the authenticity of all documents submitted to me as
originals and the conformity to authentic original documents of all documents
submitted to me as certified or photostatic copies.
Based upon the foregoing, I am of the opinion that:
1. The Corporation has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware.
2. The Corporation has the corporate power to authorize and sell the Debt
Securities.
3. The Debt Securities will be legally issued and binding obligations of
the Corporation (except as may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or
affecting the enforcement of creditors' rights or by general principles
of equity) when: (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), shall have become
effective under the Act; (ii) the Corporation's Board of Directors or a
duly authorized committee or
<PAGE> 2
Kimberly-Clark Corporation
Page 2
February 2, 1998
officer thereof shall have authorized the issuance and sale of the Debt
Securities as contemplated by the Registration Statement and the
Indenture; and (iii) the Debt Securities shall have been duly executed,
authenticated and delivered to the purchasers thereof against payment
of the agreed consideration therefor.
For purposes of this opinion, I have assumed that there will be no changes in
the laws currently applicable to the Corporation and that such laws will be the
only laws applicable to the Corporation. I express no opinion as to the
application of the securities or Blue Sky laws of the various states to the
sales of the Debt Securities.
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the use of my name under the caption "Validity of Debt
Securities" in the Prospectus and the Prospectus Supplement relating to the
Registration Statement which are reviewed and approved by me prior to the
distribution of such Prospectus and Prospectus Supplement and the filing thereof
with the Commission.
Very truly yours,
/s/ O. George Everbach
O. George Everbach
<PAGE> 1
EXHIBIT 12
KIMBERLY-CLARK CORPORATION AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(Dollar amounts in millions)
<TABLE>
<CAPTION>
Year Ended December 31
------------------------------------------------------------
1997 1996 1995 1994 1993
------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Consolidated Companies
Income before taxes (a) ............... $ 1,187.5 $ 2,002.3 $ 104.4 $ 1,147.9 $ 492.4
Interest expense ...................... 164.8 186.7 245.5 270.5 249.5
Interest factor in rent expense ....... 49.8 45.7 36.1 41.9 42.7
Amortization of capitalized interest .. 9.0 8.6 9.7 9.2 8.1
Equity Affiliates
Share of 50%-owned:
Income before income taxes ............ 51.2 49.3 40.6 48.0 35.0
Interest expense ...................... 7.1 9.5 18.5 15.3 13.7
Interest factor in rent expense ....... .7 .7 .8 .7 .8
Amortization of capitalized interest .. .6 .7 .7 .6 .6
Distributed income of less than
50%-owned ............................. 62.5 48.4 25.1 41.4 41.4
--------- --------- --------- --------- ---------
Earnings ................................ $ 1,533.2 $ 2,351.9 $ 481.4 $ 1,575.5 $ 884.2
========= ========= ========= ========= =========
Consolidated Companies
Interest expense ...................... $ 164.8 $ 186.7 $ 245.5 $ 270.5 $ 249.5
Capitalized interest .................. 17.0 13.9 8.8 20.6 28.4
Interest factor in rent expense ....... 49.8 45.7 36.1 41.9 42.7
Equity Affiliates
Share of 50%-owned:
Interest and capitalized interest ..... 7.5 9.5 18.9 15.4 13.8
Interest factor in rent expense ....... .7 .7 .8 .7 .8
--------- --------- --------- --------- ---------
Fixed charges ........................... $ 239.8 $ 256.5 $ 310.1 $ 349.1 $ 335.2
========= ========= ========= ========= =========
Ratio of earnings to fixed charges(a) 6.39 9.17 1.55 4.51 2.64
========= ========= ========= ========= =========
</TABLE>
Note: The Corporation has provided Midwest Express Airlines, Inc., its former
commercial airline subsidiary, with a five-year $20 million secondary revolving
credit facility for use in the event Midwest Express does not have amounts
available for borrowing under its revolving bank credit facility. No drawings
have been made on these facilities. S.D. Warren Company was sold on December
20, 1994, and is reflected as a discontinued operation in the consolidated
income statement. The Corporation is contingently liable as guarantor, or
directly liable as the original obligor, for certain debt and lease obligations
of S.D. Warren Company. The buyer provided the Corporation with a letter of
credit from a major financial institution guaranteeing repayment of these
obligations. No losses are expected from these arrangements and they
have not been included in the computation of earnings to fixed charges.
(a) The ratio of earnings to fixed charges includes a pretax restructuring
charge of $701.2 million in 1997, $1,440.0 million in 1995 and $378.9 million in
1993. Excluding this charge, the ratio of earnings to fixed charges was 9.32 in
1997, 6.20 in 1995 and 3.77 in 1993.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration Statement of
Kimberly-Clark Corporation on Form S-3 of our reports dated January 27, 1997,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Kimberly-Clark Corporation for the year ended December 31, 1996 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Dallas, Texas
January 30, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF COOPERS & LYBRAND L.L.P.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 and in the related Prospectus of Kimberly-Clark
Corporation of our report dated January 30, 1996, which makes reference to the
Company adopting the provisions of Statement of Financial Accounting Standards
No. 121 in 1995 and that our audit did not include the 1995 provisions for
restructuring and other unusual charges which were audited by other auditors,
on our audit of the consolidated financial statements and financial statement
schedule of Scott Paper Company and subsidiaries as of December 30, 1995 and
for the year then ended, appearing in and incorporated by reference in the
Annual Report on Form 10-K under the Securities Exchange Act of 1934 of
Kimberly-Clark Corporation for the year ended December 31, 1996.
/s/ COOPERS & LYBRAND L.L.P.
2400 Eleven Penn Center
Philadelphia, PA
January 30, 1998
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ John F. Bergstrom
---------------------------
John F. Bergstrom
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ Pastora San Juan Cafferty
--------------------------------
Pastora San Juan Cafferty
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ Paul J. Collins
---------------------------
Paul J. Collins
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ Robert W. Decherd
---------------------------
Robert W. Decherd
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ William O. Fifield
---------------------------
William O. Fifield
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ Louis E. Levy
---------------------------
Louis E. Levy
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ Frank A. McPherson
---------------------------
Frank A. McPherson
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ Linda Johnson Rice
---------------------------
Linda Johnson Rice
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ Wayne R. Sanders
---------------------------
Wayne R. Sanders
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ Wolfgang R. Schmitt
---------------------------
Wolfgang R. Schmitt
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any one of them, or his substitute or
their substitutes, lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of January, 1998.
/s/ Randall L. Tobias
---------------------------
Randall L. Tobias
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
KIMBERLY-CLARK CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 39-0394230
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY
TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of Governors
of the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED
AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee
now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b)
of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
2
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 2nd day of February, 1998
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ JOHN R. PRENDIVILLE
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 31, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Kimberly-Clark Corporation and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ JOHN R. PRENDIVILLE
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400
THOUSANDS RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1) ...... 0081 4,499,15 1.a.
b. Interest-bearing balances(2) ............................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) .. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell ........................................................ 1350 5,561,976 3.
4. Loans and lease financing receivables: a. Loans and leases,
net of unearned income (from Schedule RC-C) ................... RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses .................. RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve ...................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) ....................... 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D) ........................... 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases) ...... 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M) .................. 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ................................ 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding .. 2155 614,921 9.
10. Intangible assets (from Schedule RC-M) ........................ 2143 277,105 10.
11. Other assets (from Schedule RC-F) ............................. 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11) ...................... 2170 56,108,875 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 31
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
--------------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) ................................. RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1) .................................. RCON 6631 8,918,843 13.a.1
(2) Interest-bearing ........................................ RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) ......................... RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing .................................... RCFN 6631 352,399 13.b.1
(2) Interest-bearing ....................................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: ................................................. RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D) ..................... RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less .............. RCFD 2332 2,608,057 16.a
b. With a remaining maturity of more than one year through
three years.................................................. A547 379,893 16.b
c. With a remaining maturity of more than three years ......... A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding......... RCFD 2920 614,921 18
19. Subordinated notes and debentures (2) .......................... RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) ......................... RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20).................. RCFD 2948 51,718,600 21
22. Not applicable..................................................
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................... RCFD 3838 0 23
24. Common stock.................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock)........ RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves....................... RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities .................................................. RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments............. RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27)............... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28)... RCFD 3300 56,108,875 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C> <C> <C> <C>
1. Indicate in the box at the right the number of
the statement below that best describes the most
comprehensive level of auditing work performed for NUMBER
the bank by independent external auditors as of ------
any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724 N/A M.1
</TABLE>
<TABLE>
<S> <C> <C> <C>
1 = Independent audit of the bank conducted in 4 = Directors' examination of the bank
accordance with generally accepted auditing performed by other external auditors (may
standards by a certified public accounting be required by state chartering authority)
firm which submits a report on the bank
5 = Review of the bank's financial statements
2 = Independent audit of the bank's parent holding by external auditors
company conducted in accordance with generally
accepted auditing standards by a certified 6 = Compilation of the bank's financial statements
public accounting firm which submits a report by external auditors
on the consolidated holding company (but not
on the bank separately) 7 = Other audit procedures (excluding tax preparation
work)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing 8 = No external audit work
standards by a certified public accounting firm
(may be required by state chartering authority)
</TABLE>
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
