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As filed with the Securities and Exchange Commission on March 14, 1996.
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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TRINOVA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
OHIO 34-4288310
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
3000 Strayer, Maumee, Ohio 43537-0050
(419) 867-2200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JAMES E. KLINE, ESQ.
Vice President and General Counsel
3000 Strayer
P.O. Box 50
Maumee, Ohio 43537-0050
(419) 867-2200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
LOUIS RORIMER, ESQ. HOWARD G. GODWIN, JR., ESQ.
Jones, Day, Reavis & Pogue Brown & Wood
901 Lakeside Avenue One World Trade Center
Cleveland, Ohio 44114 New York, New York 10048
(216) 586-3939 (212) 839-5300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, 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 of 1933, 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 of 1993 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 under
the Securities Act of 1933, please check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
AGGREGATE OFFERING PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED(1) TO BE REGISTERED(2) PER UNIT(3) OFFERING PRICE(3) REGISTRATION FEE(4)
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<S> <C> <C> <C> <C>
Debt Securities................. $175,000,000 100% $175,000,000 $60,345
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<FN>
(1) This registration statement also covers delayed delivery contracts that
may be issued by the Registrant under which the party purchasing such
contracts may be required to purchase Debt Securities. Such contracts may
be issued together with the specific securities to which they relate.
(2) In U.S. dollars or the equivalent thereof in one or more foreign
currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
(3) Estimated solely for purposes of calculating the registration fee.
(4) Pursuant to Rule 429 under the Securities Act of 1933, $75,000,000 of
Debt Securities are carried forward from Registration Statement No.
33-9127. The amount of the registration fee associated with such Debt
Securities that was previously paid with Registration Statement No.
33-9127 is $15,000.
</TABLE>
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Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
included in this registration statement is a combined prospectus relating
also to Registration Statement No. 33-9127. This registration statement also
constitutes Post-Effective Amendment No. 2 to Registration Statement No.
33-9127, and such Post-Effective Amendment shall hereafter become effective
concurrently with the effectiveness of this registration statement and in
accordance with Section 8(c) of the Securities Act of 1933. This registration
statement and the registration statement amended hereby are collectively
referred to as the "Registration Statement."
---------------------------------
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 THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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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.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MARCH 14, 1996
PROSPECTUS
$250,000,000
TRINOVA CORPORATION
DEBT SECURITIES
------------------------------------------
TRINOVA Corporation ("TRINOVA" or the "Corporation") may offer from
time to time debt securities consisting of debentures, notes or other unsecured
evidences of indebtedness (the "Securities") with an aggregate initial public
offering price of up to $250,000,000 or the equivalent in foreign currency or
currency units. The Securities may be offered as separate series, in amounts, at
prices and on terms to be determined at the time of sale and to be set forth in
supplements to this Prospectus. The Corporation may sell the Securities to or
through underwriters, and also may sell the Securities directly to dealers or
other purchasers or through agents. See "Plan of Distribution."
The terms of the Securities, including, where applicable, the specific
designation, aggregate principal amount, denominations, maturity, rate (which
may be fixed or variable) and time of payment of interest, if any, the currency
or currency units in which payments in respect of the Securities may be made,
purchase price, terms for redemption, the public offering price, the names of
any underwriters or agents, the principal amounts, if any, to be purchased by
underwriters and any compensation of such underwriters or agents and the other
terms in connection with the offering and sale of the Securities in respect of
which this Prospectus is being delivered, are to be set forth in a Prospectus
Supplement (the "Prospectus Supplement").
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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 MARCH , 1996.
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AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Corporation with the Commission may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, as well as at the Commission's
Regional Offices at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511; and Seven World Trade Center, 13th Floor,
New York, New York 10048. Copies of such material may also be obtained by mail
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Reports, proxy statements and other
information concerning the Corporation may also be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005; the
Chicago Stock Exchange, One Financial Place, 440 S. LaSalle Street, Chicago,
Illinois 60605; the Pacific Stock Exchange, 301 Pine Street, San Francisco,
California 94104; The Stock Exchange, P.O. Box 119, London EC2P 2BT England; and
the Frankfurt Stock Exchange, c/o Dresdner Bank AG, Jurgen-Ponto-Platz 1, D-6000
Frankfurt am Main 11, Germany.
The Corporation has filed with the Commission a Registration Statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities offered hereby.
This Prospectus does not contain all of the information set forth in such
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. The Registration Statement and the
exhibits thereto may be inspected without charge at the office of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies thereof may be
obtained from the Commission upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission pursuant to
Section 13 of the Exchange Act are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1995.
2. Current Report on Form 8-K filed on January 16, 1996, as amended by Form
8-K/A filed on March 14, 1996.
All documents filed by the Corporation pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities offered hereby shall
be deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents.
The Corporation will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the foregoing documents incorporated herein by reference
(other than exhibits to such documents which are not specifically incorporated
by reference in such documents). Requests should be directed to Secretary,
TRINOVA Corporation, 3000 Strayer, Maumee, Ohio 43537-0050, telephone number
(419) 867-2200.
THE CORPORATION
TRINOVA, an Ohio corporation, is a world leader in the manufacture and
distribution of engineered components and systems for industry, sold through its
operating companies, Aeroquip Corporation and Vickers, Incorporated, to the
industrial, automotive, and aerospace and defense markets. The Corporation's
executive offices are located at 3000 Strayer, Maumee, Ohio 43537-0050, and its
telephone number at that address is (419) 867-2200.
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USE OF PROCEEDS
TRINOVA intends to use the net proceeds from the sale of the Securities
offered hereby for general corporate purposes, which may include the reduction
of short-term borrowings. More specific information concerning the use of
proceeds from the sale of any Securities may be included in the Prospectus
Supplement relating to such Securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated.
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FOR THE YEARS ENDED DECEMBER 31
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1995 1994 1993 1992 1991
- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C>
4.9x 4.4x 1.5x 1.6x --
</TABLE>
For the purpose of computing the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes and cumulative effect of
accounting change, plus fixed charges, less undistributed income (losses) of
unconsolidated affiliates. Fixed charges consist of interest expense, the
portion of rent expense representing interest, and amortization of debt expense
and debt discount. For the year ended December 31, 1991, there was an earnings
deficiency of $195.3 million in covering fixed charges due, in part, to a
special charge for the write-off of certain intangibles and other charges
amounting to $166.4 million.
DESCRIPTION OF SECURITIES
The Securities offered hereby are to be issued under an indenture (such
indenture, as it may be supplemented from time to time and including the
provisions deemed to be included therein by the Trust Indenture Act of 1939, the
"Indenture") between the Corporation and NBD Bank, as Trustee (the "Trustee"), a
copy of which is filed as an exhibit to the Registration Statement. The
following summaries of certain provisions of the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all provisions of the Indenture, including the definitions therein of
certain terms.
The Indenture provides that, in addition to the Securities offered hereby,
additional Securities may be issued thereunder without limitation as to
aggregate principal amount.
GENERAL
Reference is made to the Prospectus Supplement relating to the particular
series of Securities offered thereby for the following terms of the Securities:
(1) the title of such Securities; (2) any limit upon the aggregate principal
amount of such Securities; (3) the principal payment date or dates of such
Securities; (4) if interest bearing, the interest rate or rates of the
Securities, whether the interest rate is variable and if so, the manner of
calculation of the interest rate, the date or dates from which interest will
accrue, the interest payment dates and the record dates; (5) the place or places
where principal of and interest on the Securities are payable; (6) any
redemption provisions applicable to the Securities; (7) any sinking fund or
analogous provisions applicable to the Securities; (8) if other than U.S.
dollars, the currencies in which the principal of and premium, if any, and
interest on the Securities are payable; (9) if other than $1,000 and integral
multiples thereof, the denominations of the Securities; (10) if other than the
principal amount thereof, the portion of the principal amount of the Securities
payable upon acceleration; (11) whether the Securities are issuable as
registered Securities or unregistered Securities and if issued as unregistered
Securities provisions with respect to the offer, sale, delivery or exchange of
the Securities; (12) whether and under what circumstances the Corporation will
pay additional amounts (the "Additional Amounts") in respect of specified taxes,
assessments or other governmental charges and whether the Corporation has the
option to redeem the affected Securities rather than pay the Additional Amounts;
(13) any defeasance provisions applicable to the Securities; (14) any book-entry
provisions with respect to the Securities and any depository for the Securities;
and (15) any other terms of such Securities (which shall not be inconsistent
with the provisions of the Indenture). (Section 2.01 of the Indenture)
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The Securities will be unsecured and will rank pari passu with all other
unsecured and unsubordinated indebtedness of the Corporation. The Indenture does
not limit the incurrence of any additional indebtedness, whether secured or
unsecured.
If the Securities are in registered form, principal and premium, interest
and Additional Amounts, if any, will be payable, and such Securities will be
transferable, at the offices of the Trustee at 611 Woodward Avenue, Detroit,
Michigan 48226, provided that payment of interest may be made at the option of
the Corporation by check mailed to the address of the person entitled thereto,
or in the case of Global Securities (as described below), by wire transfer of
immediately available funds. (Sections 4.01 and 4.02 of the Indenture) Principal
of, and premium, interest and Additional Amounts, if any, on Securities in
bearer form and coupons appertaining thereto, if any, will be payable against
surrender of such Securities or coupons, as the case may be, subject to any
applicable laws and regulations, at such paying agencies outside of the United
States as the Corporation may appoint from time to time at the places and
subject to the restrictions set forth in the Indenture, the Securities and the
Prospectus Supplement. (Sections 4.01, 4.02 and 4.03 of the Indenture)
Securities in bearer form and the coupons, if any, appertaining thereto will be
transferable by delivery. No service charge will be made for any transfer or
exchange of such Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 2.05 of the Indenture)
If the Prospectus Supplement specifies that Securities are denominated in a
currency or currency unit other than U.S. dollars, such Prospectus Supplement
will also specify the denominations in which such Securities will be issued and
the coin or currency in which the principal and premium, interest and Additional
Amounts, if any, on such Securities will be payable.
Some of the Securities may be issued as discounted Securities (bearing no
interest or interest at a rate which at the time of issuance is below market
rates) to be sold at a substantial discount below their stated principal amount.
Special considerations applicable to the Securities of any series,
including any special Federal income tax consequences, will be described in the
Prospectus Supplement relating thereto.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Corporation will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets to any person, firm or
corporation, unless (i) either the Corporation is the continuing corporation, or
the successor corporation is a corporation organized and existing under the laws
of the United States of America or a state thereof and such corporation
expressly assumes the due and punctual payment of the Securities and Additional
Amounts and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture and (ii) the Corporation or such
successor corporation is not, immediately after such merger, consolidation, sale
or conveyance, in default in the performance of any such covenant or condition.
(Section 6.01 of the Indenture)
CERTAIN COVENANTS
Definitions Applicable to Covenants. The following definitions are
applicable to the covenants specified below (Section 1.01 of the Indenture):
"Attributable Debt" means, at the time of determination as to any
lease, the lesser of (A) the fair value of the property subject to such
lease (as determined in good faith by the Board of Directors of the
Corporation) or (B) the present value (discounted at the actual rate, if
stated, or, if no rate is stated, the implicit rate of interest of such
lease transaction as determined, in good faith, by the chairman of the
Board of Directors, the president, any vice president, the treasurer or any
assistant treasurer of the Corporation), calculated using the interval of
scheduled rental payments under such lease, of the obligation of the lessee
for net rental payments during the remaining term of such lease (excluding
any subsequent renewal or other extension options held by the lessee). The
term "net rental payments" means, with respect to any lease for any period,
the sum of the rental and other payments required to be
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paid in such period by the lessee thereunder, but not including, however,
any amounts required to be paid by such lessee (whether or not designated
as rental or additional rental) on account of maintenance and repairs,
insurance, taxes, assessments, water rates, indemnities or similar charges
required to be paid by such lessee thereunder or any amounts required to be
paid by such lessee thereunder contingent upon the amount of sales,
earnings or profits of the lessee with respect to such leased property or
of maintenance and repairs, insurance, taxes, assessments, water rates,
indemnities or similar charges; provided, however, that, in the case of any
lease which is terminable by the lessee upon the payment of a penalty in an
amount which is less than the total discounted net rental payments required
to be paid from the later of the first date upon which such lease may be so
terminated and the date of the determination of net rental payments, "net
rental payments" includes the then current amount of such penalty from the
later of such two dates, and excludes the rental payments relating to the
remaining period of the lease commencing with the later of such two dates.
"Consolidated Net Tangible Assets" means the total assets on a
consolidated balance sheet of the Corporation and the Restricted
Subsidiaries (less applicable reserves and other properly deductible items)
less: (A) current liabilities, including the current portion of long-term
debt; (B) all other liabilities except deferred income taxes and Funded
Debt; (C) goodwill, trade names, trademarks, patents, organization
expenses, unamortized debt discount and expense less unamortized debt
premium and other like intangibles (other than deferred charges and prepaid
expenses); (D) adjustments for minority interests; and (E) equity in and
net advances to Subsidiaries which are not Restricted Subsidiaries and
entities accounted for on the equity method of accounting. The calculation
of Consolidated Net Tangible Assets is made using the Corporation's latest
available consolidated statement of financial position.
"Debt" includes notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed and guarantees thereof.
"Funded Debt" means indebtedness for borrowed money owed or guaranteed
by a Person and any other indebtedness which under generally accepted
accounting principles would appear as debt on a balance sheet of such
Person, which matures by its terms more than twelve months from the date as
of which Funded Debt is to be determined or is extendible or renewable at
the option of the obligor to a date more than twelve months from the date
as of which Funded Debt is to be determined.
"Mortgage" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance which has been granted or otherwise consented to by the
Corporation. Notwithstanding the foregoing, the following liens are, for
purposes of the Indenture, not deemed to be Mortgages: (A) liens for taxes
if the same are not at the time delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate
proceedings and adequate reserves with respect thereto are maintained on
the books of the Corporation or the appropriate Restricted Subsidiary, as
the case may be; (B) liens arising from any attachment being contested in
good faith by appropriate proceedings and any lien arising from a judgment
or award so long as a subsisting stay of execution or enforcement thereof
has been obtained; (C) other liens incidental to the conduct of the
Corporation's or any Restricted Subsidiary's business or the ownership of
any of their respective property and assets (including, without limitation,
carriers', warehousemen's, mechanics', materialmen's and vendors' liens)
which do not, in the opinion of the Corporation or any Restricted
Subsidiary, in the aggregate materially detract from the value of the
property or assets of the Corporation and its Restricted Subsidiaries,
taken as a whole, or materially impair their use in the operation of the
business of the Corporation or such Restricted Subsidiary, as the case may
be; (D) liens arising from pledges or deposits in connection with workers'
compensation, unemployment insurance and other legislation; (E) liens
arising from deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business; (F) liens arising from minor survey exceptions, minor
encumbrances, easements or reservations of, or rights of others for,
rights-of-way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning or other restrictions as to the use of
any Principal Property of the Corporation or a Restricted Subsidiary, which
encumbrances, easements, reservations,
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rights and restrictions do not, in the opinion of the Corporation, in the
aggregate materially detract from the value of the property or assets of
the Corporation and its Restricted Subsidiaries, taken as a whole, or
materially impair their use in the operation of the business of the
Corporation or such Restricted Subsidiary, as the case may be; and (G)
liens created, incurred or assumed in connection with any tax-free
financing.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Principal Property" means any manufacturing or processing plant or
warehouse owned at the date of the Indenture by the Corporation or any of
its Subsidiaries or thereafter acquired by the Corporation or any of its
Subsidiaries which is located within the United States of America or Canada
and the gross book value (including related land and improvements thereon
and all machinery and equipment included therein without deduction of any
depreciation reserves) of which on the date as of which the determination
is being made exceeds 1% of Consolidated Net Tangible Assets, other than
(A) any property which the Board of Directors determines, in good faith, is
not of material importance to the total business conducted by the
Corporation and its Subsidiaries as an entirety or (B) any portion of a
property which is similarly found not to be of material importance to the
use or operation of such property.
"Restricted Subsidiary" means any Subsidiary (A) which owns an
interest in a Principal Property or (B) substantially all of the business
of which is carried on within the United States of America or Canada.
"Secured Debt" means any Debt (whether now existing or created after
the date of the Indenture) of the Corporation or any Restricted Subsidiary,
secured by a Mortgage on any Principal Property (or portion thereof) or on
any shares of stock or indebtedness of a Restricted Subsidiary held by the
Corporation or any Restricted Subsidiary (including any such stock or
indebtedness acquired after the date of the Indenture).
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to
elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by the
Corporation, or by one or more Subsidiaries, or by the Corporation and one
or more Subsidiaries.
Limitation on Liens. So long as any Securities are outstanding, the
Corporation will not, nor will it permit any Restricted Subsidiary to, issue or
assume or guarantee any Secured Debt without in any such case effectively
providing concurrently with the issuance or assumption or guarantee of any such
Secured Debt that the Securities offered hereby (together with, if the
Corporation so determines, any other indebtedness of the Corporation or such
Restricted Subsidiary ranking equally with the Securities offered hereby and
then existing or thereafter created) be secured equally and ratably with (or, at
the option of the Corporation, prior to) such Secured Debt, unless the aggregate
amount of such Secured Debt issued or assumed or guaranteed, together with all
such Secured Debt of the Corporation and its Restricted Subsidiaries which (if
originally issued or assumed or guaranteed at such time) would otherwise be
subject to the foregoing restrictions and all Attributable Debt deemed to be
Secured Debt pursuant to the sale and lease-back covenant below, but not
including Secured Debt permitted to be secured under clauses (i) through (vi) of
the immediately following paragraph, does not at the time exceed 10% of
Consolidated Net Tangible Assets.
This covenant does not apply to, and there is excluded from Secured Debt:
(i) any Debt secured by a Mortgage on property, shares of stock or indebtedness
of any corporation existing at the time such corporation becomes a Restricted
Subsidiary; (ii) any Debt secured by a Mortgage existing on property, shares of
stock or indebtedness at the time of acquisition of such property, shares of
stock or indebtedness by the Corporation or a Restricted Subsidiary, or a
Mortgage to secure the payment of all or any part of the purchase price of such
property, shares of stock or indebtedness upon the acquisition of such property,
shares of stock or indebtedness by the Corporation or a Restricted Subsidiary or
to secure any Debt incurred prior to, at the time of, or within 180 days after
(A) in the case of shares of stock or indebtedness, the date of acquisition of
such shares of stock
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or indebtedness, and (B) in the case of property, the later of the date of
acquisition of such property and the date such property is placed in service,
for the purpose of financing all or any part of the purchase price thereof, or a
Mortgage to secure any Debt incurred for the purpose of financing the cost to
the Corporation or a Restricted Subsidiary of improvements to such acquired
property; (iii) any Debt secured by a Mortgage of (A) a Restricted Subsidiary
owing to the Corporation or to another Restricted Subsidiary or (B) the
Corporation owing to any Restricted Subsidiary; (iv) any Debt secured by a
Mortgage on property of a Corporation existing at the time such corporation is
merged or consolidated with the Corporation or a Restricted Subsidiary or at the
time of a sale, lease or other disposition of the properties of a corporation as
an entirety or substantially as an entirety to the Corporation or a Restricted
Subsidiary; (v) any Debt secured by a Mortgage on property of the Corporation or
a Restricted Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of America or any State thereof, or in favor of any other
country, or any political subdivision thereof, 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 all or any part
of the purchase price or the cost of construction of the property subject to
such Mortgage; or (vi) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Debt secured by
a Mortgage referred to in the foregoing clauses (i) to (v), inclusive; provided,
however, that the principal amount of such Debt does not exceed the principal
amount of Debt so secured at the time of such extension, renewal or replacement
and that such extension, renewal or replacement is limited to all or a part of
the property which secured the Debt so extended, renewed or replaced (plus
improvements on such property). (Section 4.05 of the Indenture)
Limitation on Sale and Lease-Back. So long as any Securities are
outstanding, the Corporation will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any Person providing for the
leasing by the Corporation or any Restricted Subsidiary of any Principal
Property, which property has been or is to be sold or transferred by the
Corporation or such Restricted Subsidiary to such Person, unless either (i) the
Corporation or such Restricted Subsidiary would be entitled, pursuant to the
provisions of the covenant on limitation on liens described above, to issue,
assume, extend, renew or replace Debt secured by a Mortgage upon such property
equal in amount to the Attributable Debt in respect of such arrangement without
equally and ratably securing the Securities offered hereby; provided, however,
that from and after the date on which such arrangement becomes effective the
Attributable Debt in respect of such arrangement shall be deemed for all
purposes under the covenant on limitation on liens described above and this
covenant on limitation on sale and lease-back to be Debt subject to the
provisions of the covenant on limitation on liens described above (which
provisions include the exceptions set forth in clauses (i) through (vi) of such
covenant), or (ii) the Corporation shall apply an amount in cash equal to the
greater of (A) the net proceeds of the sale of the Principal Property so sold
and leased back or (B) the fair market value (as determined in good faith by the
Corporation's Board of Directors) of the Principal Property so sold and leased
back, to the retirement (other than any mandatory retirement or by way of
payment at maturity), within 180 days of the effective date of any such lease
arrangement, of Funded Debt of the Corporation or any Restricted Subsidiary
(other than Debt owned by the Corporation or any Restricted Subsidiary) or the
purchase of other property which will constitute a Principal Property having a
fair market value (as determined in good faith by the Corporation's Board of
Directors) at least equal to the fair market value of the Principal Property
leased in such sale and lease-back transaction or (iii) such sale and lease-back
transaction is between the Corporation and a Restricted Subsidiary or between
Restricted Subsidiaries. This covenant does not apply to any lease arrangements
having a maximum term (including renewal and other extension options) of three
years or less. (Section 4.06 of the Indenture)
DEFEASANCE
The Indenture provides that, if the provisions of Article XII relating to
defeasance are made applicable to Securities of any series, at the Corporation's
option either (a) the Corporation will be deemed to have paid and discharged all
outstanding Securities of such series or (b) the Corporation's obligations to
comply with any term, provision, condition or covenant specified at the time of
issuance of such Securities will be terminated, in either case upon the deposit
with the Trustee, in trust, of money sufficient to pay and discharge
7
<PAGE> 9
such Securities or the deposit of direct noncallable obligations of, or
noncallable obligations the payment of principal of and interest on which is
fully guaranteed by, the United States of America, maturing as to principal and
interest in such amounts and at such times as will, together with the income to
accrue thereon (but without reinvesting any proceeds), be sufficient to pay and
discharge the Securities of such series. (Section 12.02 of the Indenture)
MODIFICATION OF THE INDENTURE
The Corporation and the Trustee are permitted, without the consent of
the holders of the Securities, to enter into supplemental indentures to, among
other purposes: (i) cure any ambiguity or correct or supplement any provisions
or make provisions as will not adversely affect the interests of the holders of
any Securities; (ii) establish the form or terms of Securities; or (iii) add to
the covenants of the Corporation further covenants or provisions as the Board
of Directors of the Corporation and the Trustee consider to be for the
protection of the holders of the Securities and add further events of default
to the Indenture. (Section 10.01 of the Indenture)
The Indenture also contains provisions permitting the Corporation and the
Trustee to modify or amend the Indenture or any supplemental indenture or the
rights of the holders of the Securities issued thereunder, with the consent of
the holders of not less than 66 2/3% in principal amount of the Securities of
all series at the time outstanding under such Indenture which are affected by
such modification or amendment (voting as one class), provided that no such
modification will (i) extend the fixed maturity of any Securities, or reduce the
principal amount thereof, or premium, if any, or reduce the rate or extend the
time of payment of interest or Additional Amounts thereon, or reduce the amount
due and payable upon acceleration of the maturity thereof or the amount provable
in bankruptcy, or make the principal of, or premium, interest or Additional
Amounts on, any Security payable in any coin or currency other than that
provided in such Security, (ii) impair the right to initiate suit for the
enforcement of any such payment on or after the stated maturity thereof or
redemption date, if any, or (iii) reduce the aforesaid percentage of Securities,
the consent of the holders of which is required for any such modification, or
the percentage required for the consent of the holders to waive defaults without
the consent of the holder of each Security so affected. (Section 10.02 of the
Indenture)
EVENTS OF DEFAULT
An Event of Default with respect to any series of Securities is defined in
the Indenture as being: (i) default in payment of any principal or premium, if
any, on Securities of such series; (ii) default for 30 days in payment of any
interest or Additional Amounts on Securities of such series; (iii) default for
90 days after notice in performance of any other covenant applicable to the
Securities of such series; (iv) certain events of bankruptcy, insolvency or
reorganization; or (v) the occurrence of any default under an instrument
evidencing or securing other indebtedness of the Corporation or any Subsidiary
for borrowed money in excess of the greater of 1% of the Corporation's
shareholders' equity (as represented on the Corporation's latest available
consolidated statement of financial position) or $10 million, resulting in the
acceleration of such indebtedness, which acceleration is not being contested in
good faith by the Corporation or any such Subsidiary and is not rescinded or
annulled pursuant to the instrument evidencing or securing such indebtedness.
(Section 6.01 of the Indenture) In case an Event of Default under clause (i),
(ii) or (iii) shall occur and be continuing with respect to any series, the
Trustee or the holders of not less than 25% in aggregate principal amount of
Securities of all series affected thereby may declare the principal (or, in the
case of discounted Securities, the amount specified in the terms thereof) of
such series to be due and payable. In case an Event of Default under clause (iv)
or (v) shall occur and be continuing, the Trustee or the holders of not less
than 25% in aggregate principal amount of all of the Securities then outstanding
(voting as one class) may declare the principal (or, in the case of discounted
Securities, the amount specified in the terms thereof) of all outstanding
Securities to be due and payable. Any Event of Default with respect to a
particular series of Securities may be waived by the holders of a majority in
aggregate principal amount of the outstanding Securities of such series (or of
all of the outstanding Securities, as the case may be), except in a case of
failure to pay principal or premium, if any, or interest or Additional Amounts,
if any, in respect of such Security for which payment had not been subsequently
made. (Section 6.01 of the Indenture) The Indenture provides that the Trustee
may withhold notice to the securityholders of any default (except in payment of
principal or premium, interest or Additional
8
<PAGE> 10
Amounts, if any) if it considers it in the interest of the securityholders to do
so. (Section 6.07 of the Indenture)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
shall be under no obligation to exercise any of its rights or powers under the
Indenture at the request, order or direction of any of the securityholders,
unless such securityholders shall have offered to the Trustee reasonable
indemnity. (Sections 7.01 and 7.02 of the Indenture) Subject to such provisions
for the indemnification of the Trustee and to certain other limitations, the
holders of a majority in aggregate principal amount of the Securities of all
series affected (voting as one class) at the time outstanding shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee. (Section 6.06 of the Indenture)
The Corporation will be required to file with the Trustee annually an
officers' certificate as to the absence of certain defaults under the terms of
the Indenture. (Section 4.07 of the Indenture)
BOOK-ENTRY SYSTEM
The Securities of a series may be issued in whole or in part in the form of
one or more global securities (the "Global Securities") that will be deposited
with or on behalf of a depositary (a "Depositary") identified in the Prospectus
Supplement relating to such series.
The specific terms of the depositary arrangement with respect to any
Securities of a series will be described in the Prospectus Supplement relating
to such series. The Corporation anticipates that the following provisions will
apply to all depositary arrangements.
Unless otherwise specified in an applicable Prospectus Supplement,
Securities that are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of a Global
Security in registered form, the Depositary for such Global Security will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Securities represented by such Global Security to the
accounts of institutions that have accounts with such Depositary or its nominee
("Participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Securities or by the Corporation, if such
Securities are offered and sold directly by the Corporation. Ownership of
beneficial interests in such Global Securities will be limited to Participants
or persons that may hold interests through Participants. Ownership of beneficial
interests by Participants in such Global Securities will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the Depositary or its nominee for such Global Security. Ownership
of beneficial interests in Global Securities by persons that hold through
Participants will be shown on, and the transfer of that ownership interest
within such Participant will be effected only through, records maintained by
such Participant. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes under the Indenture
governing such Securities. Except as set forth below, owners of beneficial
interests in such Global Securities will not be entitled to have Securities of
the series represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Securities of such
series in definitive form and will not be considered the owners or holders
thereof under the Indenture.
Payment of principal of, premium, if any, and any interest on Securities
registered in the name of or held by a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner or
the holder of the Global Security representing such Securities. None of the
Corporation, the Trustee, or any agent of the Corporation or Trustee will have
any responsibility or liability for any aspect of the Depositary's records
relating to or payments made on account of beneficial ownership interests in a
Global
9
<PAGE> 11
Security for such Securities or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Corporation expects that the Depositary for Securities of a series,
upon receipt of any payment of principal, premium or interest in respect of a
permanent Global Security, will immediately credit, on its book-entry
registration and transfer system, the accounts of Participants with payments in
amounts proportionate to their respective beneficial interests in the principal
or face amount of such Global Security as shown on the records of such
Depositary. The Corporation also expects that payments by Participants to owners
of beneficial interests in such Global Security held through such Participants
will be governed by standing instructions and customary practices, as is now the
case with securities held for the accounts of customers registered in "street
name," and will be the responsibility of such Participants.
A Global Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary. A Global Security representing the
Securities is exchangeable for Securities in definitive registered form only if
(x) the Depositary notifies the Corporation that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time the Depositary
ceases to be a clearing agency registered under the Exchange Act and in either
case the Corporation fails within 90 days thereafter to appoint a successor or
(y) the Corporation in its sole discretion determines that such Global Security
shall be so exchangeable. In such event, the Corporation will issue Securities
in definitive registered form in exchange for the Global Security representing
such Securities. Subject to the foregoing, a Global Security is not
exchangeable, except for a Global Security of like denomination to be registered
in the name of the Depositary or its nominee. (Section 2.05 of the Indenture)
CONCERNING THE TRUSTEE
NBD Bank is the Trustee under the Indenture. NBD Bank is the trustee under
an indenture dated as of January 28, 1988, as supplemented by the First
Supplemental Indenture dated as of May 4, 1992, between itself and the
Corporation. NBD Bank also acts as depository for funds of, makes loans to, acts
as trustee for and performs certain other services for the Corporation and
certain of its subsidiaries and affiliates in the normal course of its business.
PLAN OF DISTRIBUTION
The Corporation may sell Securities to or through underwriters, directly to
other purchasers or through dealers or agents.
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, 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 sale of Securities, underwriters, dealers or agents
may receive compensation from the Corporation or from purchasers of Securities
for whom they may act as agents, in the form of discounts, concessions or
commissions. Underwriters, dealers and agents that participate in the
distribution of 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 Securities by them may be deemed to be underwriting discounts and commissions
under the Securities Act. Any such underwriter, dealer or agent will be
identified, and any such compensation received from the Corporation will be
described, in the Prospectus Supplement.
If so indicated in the Prospectus Supplement, the Corporation will
authorize agents and underwriters to solicit offers by certain institutions to
purchase Securities from the Corporation at the public offering price set forth
in the Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Each Contract will be for an amount not less than, and
unless the Corporation otherwise agrees the aggregate principal amount of
Securities sold pursuant to Contracts shall be not less nor more than, the
respective amounts stated in the Prospectus Supplement. Institutions with which
Contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable
10
<PAGE> 12
institutions, and other institutions, but shall in all cases be subject to the
approval of the Corporation. Contracts will not be subject to any conditions
except that the purchase by an institution of the Securities covered by its
Contract will not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject. A
commission indicated in the Prospectus Supplement will be paid to underwriters
and agents soliciting purchases of Securities pursuant to Contracts accepted by
the Corporation.
Underwriters, dealers and agents who participate in the distribution of
Securities may be entitled to indemnification by the Corporation against certain
liabilities, including liabilities under the Securities Act, or contribution
from the Corporation for payments which such underwriters, dealers or agents may
be required to make in respect of such liabilities, under agreements which may
be entered into by the Corporation.
EXPERTS
The consolidated financial statements of the Corporation incorporated by
reference in the Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995, and the combined statement of revenues and direct operating
expenses of the Electronic Systems Division of Cincinnati Milacron Inc. for the
year ended December 30, 1995 included in the Corporation's Current Report on
Form 8-K filed on January 16, 1996, as amended on Form 8-K/A filed on March 14,
1996, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their reports thereon included or incorporated by reference therein and
incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon such reports given upon the authority of
such firm as experts in accounting and auditing.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Corporation by Jones, Day, Reavis & Pogue, Cleveland, Ohio, and for any
underwriters, agents or dealers by Brown & Wood, New York, New York. James E.
Kline, Vice President and General Counsel of the Corporation, will also pass
upon certain matters in connection with the issuance, sale and delivery of the
Securities. Mr. Kline owns and has options to purchase Common Shares of the
Corporation.
11
<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee............................. $ 60,345
Printing and engraving.................................................... 30,000*
Services of counsel....................................................... 120,000*
Services of independent auditors.......................................... 35,000*
Trustee fees and expenses................................................. 20,000*
Blue Sky fees and expenses................................................ 12,500*
Rating Agency fees........................................................ 110,000*
Miscellaneous............................................................. 10,000*
--------
Total................................................................ $397,845*
========
</TABLE>
- ---------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended Code of Regulations of the Corporation contains the following
provisions with respect to indemnification of directors and officers:
SECTION 1. INDEMNIFICATION. The Corporation shall indemnify, to the
full extent then permitted by law, 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, by reason of the fact that he is or was a director, officer
or salaried employee of the Corporation, or is or was serving at the
request of the Corporation as a director, officer or employee of another
corporation, domestic or foreign, non-profit or for profit, partnership,
joint venture, trust or other enterprise. The indemnification provided
hereby shall not be deemed exclusive of any other rights to which a person
seeking indemnification may be entitled under any law, the articles of
incorporation or any agreement, vote of shareholders or of disinterested
directors or otherwise, both as to action in official capacities and as to
action in another capacity while he is a director, officer or salaried
employee of the Corporation, and shall continue as to a person who has
ceased to be a director, officer or salaried employee and shall inure to
the benefit of the heirs, executors and administrators of such a person.
SECTION 2. INSURANCE. The Corporation may, to the full extent then
permitted by law and authorized by the directors, purchase and maintain
insurance on behalf of any persons described in the preceding paragraph
against any liability asserted against and incurred by any such person in
any such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify such person against such
liability.
SECTION 3. INDEMNIFICATION AGREEMENTS. The Corporation may enter
into agreements with any persons described in Section 1 of this Article IV
to provide indemnification against any liability asserted against or
incurred by any such person in such capacity, or arising out of his status
as such, to the full extent permitted by law.
Ohio Revised Code Section 1701.13(E) gives the Corporation the right to
indemnify any person acting on its behalf, who was or is a party or threatened
to be made a party to a suit other than by or in the right of the Corporation,
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement in connection with the suit, if such person 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 proceeding, if he
had no reasonable cause to believe his conduct was unlawful. The Ohio statute
also permits indemnification by the
II-1
<PAGE> 14
Corporation of any person acting on its behalf for expenses, including
attorneys' fees, incurred in a suit by or in the right of the Corporation itself
if such person acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation, except that there
shall be no indemnification in respect of any such claim by or in the right of
the Corporation as to which such person shall be adjudged to be liable for
negligence or misconduct, unless a court shall determine that such person is
fairly and reasonably entitled to indemnity. If the party has been successful in
defending any such a suit or a claim or issue which is a part thereof, the
statute provides that he shall be indemnified for his expenses. Such statutory
indemnification is not exclusive of any other rights under the Corporation's
Amended Articles of Incorporation or Amended Code of Regulations, or any
agreement or vote of shareholders or disinterested directors.
The Corporation maintains directors' and officers' liability insurance
which pays, subject to policy limitations and retentions, for loss arising from
any claim against a director or officer of the Corporation by reason of a
wrongful act done in his respective capacity, including breaches of duty,
neglect, errors, misstatements, misleading statements and omissions. An act
brought about or contributed to by dishonesty is excluded, as is an accounting
for profits made from the purchase or sale of the Corporation securities within
the meaning of Section 16(b) of the Securities Exchange Act of 1934.
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
*(1) Form of Underwriting Agreement.
*(4) Form of Indenture.
*(5) Opinion of Jones, Day, Reavis & Pogue.
*(12) Computation of Ratio of Earnings to Fixed Charges.
*(23)-1 Consent of Jones, Day, Reavis & Pogue (contained in the Opinion listed as Exhibit
(5)).
*(23)-2 Consent of Ernst & Young LLP.
*(23)-3 Consent of Ernst & Young LLP.
*(24) Powers of Attorney.
*(25) Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act
of 1939 of NBD Bank.
</TABLE>
- ---------------
* Filed herewith.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and 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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
II-2
<PAGE> 15
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions of Item 15 or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act, and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 16
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE CORPORATION
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 MAUMEE, STATE OF OHIO, ON THE 13TH DAY OF MARCH,
1996.
TRINOVA CORPORATION
By /s/ WILLIAM R. AMMANN
---------------------
WILLIAM R. AMMANN
VICE PRESIDENT -
ADMINISTRATION & TREASURER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- --------------------------------- ------------------
<C> <S> <C>
/s/ DARRYL F. ALLEN* Chairman of the Board, March 13, 1996
- ---------------------------------------- President and Chief Executive
DARRYL F. ALLEN Officer (Principal Executive
Officer)
/s/ DAVID M. RISLEY Vice President - March 13, 1996
- ---------------------------------------- Finance and Chief Financial
DAVID M. RISLEY Officer (Principal Financial
Officer)
/s/ GREGORY R. PAPP Corporate Controller March 13, 1996
- ---------------------------------------- (Principal Accounting Officer)
GREGORY R. PAPP
/s/ PURDY CRAWFORD* Director March 13, 1996
- ----------------------------------------
PURDY CRAWFORD
/s/ JOSEPH C. FARRELL* Director March 13, 1996
- ----------------------------------------
JOSEPH C. FARRELL
/s/ DAVID R. GOODE* Director March 13, 1996
- ----------------------------------------
DAVID R. GOODE
/s/ PAUL A. ORMOND* Director March 13, 1996
- ----------------------------------------
PAUL A. ORMOND
/s/ JOHN P. REILLY* Director March 13, 1996
- ----------------------------------------
JOHN P. REILLY
/s/ ROBERT H. SPILMAN* Director March 13, 1996
- ----------------------------------------
ROBERT H. SPILMAN
/s/ WILLIAM R. TIMKEN, JR.* Director March 13, 1996
- ----------------------------------------
WILLIAM R. TIMKEN, JR.
*By James E. Kline, Attorney-In-Fact
/s/ JAMES E. KLINE March 13, 1996
- ----------------------------------------
Vice President and General Counsel
</TABLE>
II-4
<PAGE> 17
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGINATION
BY
SEQUENTIAL
EXHIBIT NUMBER
NUMBERS DESCRIPTION OF DOCUMENT SYSTEM
- ------- --------------------------------------------------------------- ------------
<S> <C> <C>
(1) Form of Underwriting Agreement.
(4) Form of Indenture.
(5) Opinion of Jones, Day, Reavis & Pogue.
(12) Calculation of Ratio of Earnings to Fixed Charges.
(23)-1 Consent of Jones, Day, Reavis & Pogue (contained in the Opinion
listed as Exhibit (5)).
(23)-2 Consent of Ernst & Young LLP.
(23)-3 Consent of Ernst & Young LLP.
(24) Powers of Attorney.
(25) Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of NBD Bank.
</TABLE>
<PAGE> 1
EXHIBIT (1)
Draft of March 13, 1996
-----------------------
TRINOVA CORPORATION
UNDERWRITING AGREEMENT
[Name(s) of Underwriter(s)] ____________, 199
Dear Sirs:
TRINOVA Corporation, an Ohio corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") ____________ principal amount of _____________________________
(the "Securities"), to be issued under an indenture dated as of March __, 1996
between the Company and NBD Bank, as trustee (the "Trustee") (the "Indenture").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3 (file number 333-_____), relating to certain debt
securities (the "Shelf Securities") to be issued from time to time by the
Company in accordance with Rule 415 under the Securities Act. The Company also
has filed with, or proposes to file with, the Commission pursuant to Rule 424
under the Securities Act a prospectus supplement specifically relating to the
Securities. The
<PAGE> 2
aforementioned registration statement, as amended to the date of this
Agreement, including the registration statement of the Company on Form S-3
(file number 33-9127), as amended, are hereinafter referred to collectively as
the "Registration Statement"; and the related prospectus covering the Shelf
Securities dated March __, 1996 is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the prospectus supplement
dated ________, 199_ specifically relating to the Securities in the form first
used to confirm sales of the Securities is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement,
the Basic Prospectus, any preliminary form of Prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424, or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act
which were filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Exchange
Act") on or before the date of this Agreement or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be;
and any reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under
the Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule I hereto at a purchase price of ____ percent of
the principal amount thereof, plus accrued interest, if any, from _________,
199_ to the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
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<PAGE> 3
3. Payment for the Securities shall be made to the Company or to
its order by certified or official bank check or checks payable in, or by wire
transfer of, immediately available funds at 10:00 A.M., New York City time, on
the third (fourth if the pricing occurs after 4:30 P.M., New York City time)
business day after the date of this Agreement at the offices of Brown & Wood,
One World Trade Center, New York, New York 10048 (or at such other time and
place on the same or such other date, not later than the tenth Business Day
thereafter, as the Underwriters and the Company may agree in writing). Such
payment will be made upon delivery to The Depository Trust Company of the
Global Security (as defined in the Prospectus) representing the Securities
registered in the name of The Depository Trust Company's nominee, Cede & Co.
The time and date of such payment and delivery with respect to the Securities
are referred to herein as the "Closing Date".
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared
effective by the Commission under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or, to
the knowledge of the Company, threatened by the Commission; and the
Registration Statement (as amended if the Company shall have filed any
amendments thereto) complies, or will comply, in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"), and does not and will not,
as of the applicable effective date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein;
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<PAGE> 4
(b) the documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and, for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities,
any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, as applicable, and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(c) the financial statements, and the related notes
thereto included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be
stated therein;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change, or any development involving a prospective change,
which could reasonably be expected to have a material adverse effect
on the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the Company and
its subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation, with corporate power
4
<PAGE> 5
and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(f) each of Aeroquip Corporation and Vickers,
Incorporated (collectively, the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation, with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and all the outstanding shares
of capital stock of each Subsidiary have been duly authorized and
validly issued, are fully-paid and non-assessable, and are owned by
the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, except as rights to indemnity and
contribution hereunder may be limited by applicable law;
(h) the Securities have been duly authorized by the
Company, and, when issued, delivered and authenticated pursuant to
this Agreement and the Indenture, will have been duly executed, issued
and delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company, qualified under the Trust Indenture Act and constitutes a
valid and binding instrument of the Company; and the Securities and
the Indenture conform to the descriptions thereof in the Prospectus;
(i) neither the Company nor any Subsidiary is, or with
the giving of notice or the lapse of time or both would be, in
violation of or in default under, its Articles of
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<PAGE> 6
Incorporation or its Code of Regulations or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it
or any of them or any of their respective properties is bound, except
for violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a whole
or to the holders of the Securities; the issue and sale of the
Securities and the performance by the Company of all of its
obligations under the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Articles of Incorporation or the
Code of Regulations of the Company or any of its subsidiaries or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained
under the Securities Act and the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters;
and
(j) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or
any of its subsidiaries is or may be a party or to which any property
of the Company or any of its subsidiaries is or may be subject which
could individually or in the aggregate reasonably be expected to have
a material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole and,
to the best of the Company's knowledge, no such proceedings are
threatened or
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<PAGE> 7
contemplated by governmental authorities or threatened by others; and
there are no contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required.
5. The Company covenants and agrees with each Underwriter as
follows:
(a) to file the Prospectus in a form approved by the
Underwriters pursuant to Rule 424 under the Securities Act not later
than the Commission's close of business on the second Business Day
following the date of determination of the offering price of the
Securities;
(b) to deliver to each Underwriter and counsel for the
Underwriters, at the expense of the Company, a copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to deliver to each Underwriter as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as the Underwriters may reasonably
request;
(c) from the date hereof and prior to the Closing Date,
to furnish to the Underwriters a copy of any proposed amendment or
supplement to the Registration Statement or the Prospectus, for their
review, and not to file any such proposed amendment or supplement to
which the Underwriters reasonably object;
(d) to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities, and during
such same period, to advise the Underwriters promptly, and to confirm
such advice in writing, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv)
of the receipt by the Company of any
7
<PAGE> 8
notification with respect to any suspension of the qualification of
the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to
use its best efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the
public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it is necessary, in
the opinion of counsel for the Company or counsel for the
Underwriters, to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary, in the opinion of counsel for the Company or
counsel for the Underwriters, to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of
the Company, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which
Securities may have been sold by the Underwriters and to any other
dealers upon request, such amendments or supplements to the Prospectus
as may, in the opinion of counsel for the Company or counsel for the
Underwriters, be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
the Underwriters shall reasonably request and to continue such
qualification in effect so long as reasonably required for
distribution of the Securities and to pay all fees and expenses
(including fees and disbursements of counsel for the Underwriters)
reasonably incurred in connection with such qualification and in
connection with the determination of the eligibility of the Securities
for investment under the laws of such jurisdictions as the
Underwriters may designate; provided that the Company shall not be
required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders
and to the Underwriters as soon as practicable an
8
<PAGE> 9
earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after
the effective date of the Registration Statement, which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(h) so long as the Securities are outstanding, to furnish
to the Underwriters copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national or international securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are
substantially similar to the Securities without the prior written
consent of the Underwriters; and
(j) to pay all costs and expenses incident to the
performance of its obligations hereunder, including without limiting
the generality of the foregoing, all costs and expenses (i) incident
to the preparation, issuance, execution, authentication and delivery
of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under the Securities
Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) incurred pursuant to Section 5(f) of this
Agreement, (iv) in connection with the listing of the Securities on
any stock exchange, (v) related to any filings with the National
Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and
the furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and
shipping, as herein provided and (vii) payable to rating agencies in
connection with the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
contained herein shall be true and correct on and as of the
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<PAGE> 10
Closing Date as if made on and as of the Closing Date and the Company
shall have complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date;
(b) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable time period
prescribed for such filing by the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied
with to the satisfaction of the Underwriters;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred
any downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or possible
change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any change or any
development involving a change, which could reasonably be expected to
have a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(e) the Underwriters shall have received on and as of the
Closing Date a certificate of an executive officer of the Company
satisfactory to them to the effect set forth in subsections (a)
through (c) of this Section and to the further effect that there has
not occurred any change, or any development involving a change, which
could reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that
10
<PAGE> 11
set forth or contemplated in the Prospectus or setting forth any such
change or development in reasonable detail;
(f) James E. Kline, General Counsel of the Company, shall
have furnished to the Underwriters his written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters,
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 its jurisdiction of incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus as then amended or
supplemented;
(ii) the Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries
taken as a whole;
(iii) each Subsidiary has been duly incorporated
and is validly existing as a corporation under the law of its
jurisdiction of incorporation with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the
failure to be so qualified and in good standing would not have
a material adverse effect on the Company and its subsidiaries
taken as a whole; and all of the issued shares of capital
stock of each Subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iv) other than as set forth or contemplated in
the Prospectus, there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge,
threatened to which the Company or any of its subsidiaries is
or may be a party or to which any property of the Company or
its subsidiaries is or may
11
<PAGE> 12
be the subject which could individually or in the aggregate
reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a
whole; to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; 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 described in the Registration
Statement or the Prospectus which are not filed or described
as required;
(v) neither the Company nor any of the
Subsidiaries is, or with the giving of notice or the lapse of
time or both would be, in violation of its Articles of
Incorporation or its Code of Regulations, except for
violations which could individually or in the aggregate not
reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a
whole, and the issue and sale of the Securities and the
performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will any such
action result in any violation of the provisions of the
Articles of Incorporation or the Code of Regulations of the
Company or any of its subsidiaries or any applicable law or
statute (except as rights to indemnity and contribution
hereunder may be limited by applicable law) or any order, rule
or regulation of any court or governmental agency or body
having jurisdiction over the Company, its Subsidiaries or any
of their respective properties;
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<PAGE> 13
(vi) the statements incorporated by reference in
the Prospectus from Item 3 of Part 1 of the Company's most
recent Annual Report on Form 10-K and in the Registration
Statement in Item 15, in so far as such statements constitute
a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents or proceedings;
and
(vii) (A) such counsel is of the opinion that
each document incorporated by reference in the Registration
Statement and the Prospectus (except for the financial
statements and supporting schedules included therein as to
which such counsel need express no opinion) and any other
document filed thereafter and incorporated by reference into
the Registration Statement and the Prospectus complied as to
form when filed with the Commission in all material respects
with the Exchange Act, (B) such counsel is of the opinion that
the Registration Statement and the Prospectus and any
amendments and supplements thereto (except for the financial
statements and supporting schedules included therein and that
part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act
and the Trust Indenture Act, (C) nothing has come to the
attention of such counsel to cause him to believe that (except
for the financial statements and supporting schedules included
therein and that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee as to
which such counsel need express no belief) the Registration
Statement, on the date of this Agreement, 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 not misleading, and (D) nothing has come to
the attention of such counsel to cause him to believe that the
Prospectus (except for the financial statements and supporting
schedules included therein as to which such counsel need
express no belief) as amended or supplemented, if applicable,
to the Closing Date contains an untrue statement of a material
fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the
13
<PAGE> 14
circumstances under which they were made, not misleading;
(g) Jones, Day, Reavis & Pogue, counsel for the Company,
shall have furnished to the Underwriters, their written opinion, dated
the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
(i) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding obligation of the Company, except as rights to
indemnity and contribution hereunder may be limited by
applicable law;
(ii) the Securities have been duly authorized,
executed and delivered by the Company, and, when duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under
the Trust Indenture Act and constitutes a valid and binding
instrument of the Company;
(iv) no consent, approval or authorization or
order of any governmental agency or body is required for the
issue and sale of the Securities, except such as have been
obtained under the Securities Act and the Trust Indenture Act
and as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the
Securities by the Underwriters;
(v) the statements in the Prospectus under the
captions "Description of Securities" and "Underwriting",
insofar as such statements purport to summarize the provisions
of the documents referred to therein, present fair summaries
of such provisions; and
(vi) (A) such counsel is of the opinion that the
Registration Statement and the Prospectus and any amendments
and supplements thereto (except for the financial statements
and supporting schedules included therein and that part of the
Registration Statement
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<PAGE> 15
which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture
Act, (B) no facts have come to the attention of such counsel
to cause them to believe that (except for the financial
statements and supporting schedules included therein and that
part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee as to which such
counsel need express no belief) the Registration Statement, on
the date of this Agreement, 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 not
misleading, and (C) no facts have come to the attention of
such counsel to cause them to believe that the Prospectus
(except for the financial statements and supporting schedules
included therein as to which counsel need express no belief)
as amended or supplemented, if applicable, to the Closing Date
contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Ohio, Michigan and Delaware, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel
reasonably acceptable to the Underwriters' counsel, familiar with the
applicable laws; (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company
and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinions of such
counsel for the Company shall state that the opinion of any such other
counsel is in form satisfactory to such counsel and, in such counsel's
opinion, he or they, as the case may be, and the Underwriters are
justified in relying thereon. With respect to the matters to be
covered in subparagraph (f)(vii) and (g)(vi) above, James E. Kline and
Jones, Day, Reavis & Pogue may state that
15
<PAGE> 16
their opinions and beliefs are based upon their participation in the
preparation of the Prospectus and any amendment or supplement thereto
and review and discussion of the contents of the Registration
Statement and the Prospectus and that, except as specified, they have
not independently verified and are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the
information contained in the Registration Statement and Prospectus;
(h) on the Closing Date, Ernst & Young LLP shall have
furnished to the Underwriters a letter, dated such date, in form and
substance satisfactory to the Underwriters, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus;
(i) the Underwriters shall have received on and as of the
Closing Date an opinion of Brown & Wood, counsel to the Underwriters,
with respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as
the Underwriters 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; and
(j) on or prior to the Closing Date, the Company shall
have furnished to the Underwriters such further certificates and
documents as the Underwriters shall reasonably request.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished
16
<PAGE> 17
to the Company in writing by such Underwriter expressly for use therein;
provided that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such
person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter expressly
for use in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
17
<PAGE> 18
between them. It is understood that the Indemnifying Person shall not, in
connection with any proceedings or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the first of the named Underwriters on
Schedule I hereto and any such separate firm for the Company, its directors,
its officers who sign the Registration Statement and such control persons of
the Company or authorized representatives shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) 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 hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, 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 respective proportions as the net proceeds from the
offering of such Securities (before deducting expenses) received by the Company
and the total underwriting discounts and the commissions received
18
<PAGE> 19
by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other 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 by 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 Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitation set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
persons guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of the Securities set forth opposite their
names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any
19
<PAGE> 20
person controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and (iii)
acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may
be terminated in the absolute discretion of the Underwriters, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of or guaranteed by
the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Underwriters, is material and adverse and which,
in the judgment of the Underwriters, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any Underwriter shall fail or refuse
to purchase Securities which it has agreed to purchase under this Agreement,
and the aggregate principal amount of Securities which such defaulting
Underwriter agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Securities, the other Underwriter[s]
shall be obligated to purchase their pro rata portion of the Securities which
such defaulting Underwriter agreed but failed or refused to purchase on such
date. If, on the Closing Date, any Underwriter shall fail or refuse to
purchase Securities and the aggregate principal amount of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Securities to be purchased, and arrangements satisfactory
to the non-defaulting Underwriter[s] and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of the non-defaulting
Underwriter[s] or the Company. In any such case, either the non-defaulting
Underwriter[s] or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from
20
<PAGE> 21
liability in respect of any default by such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Securities.
11. This Agreement shall inure to the benefit of and be binding
upon the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor merely by
reason of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Underwriters jointly or by [managing Underwriter] alone on behalf of the
Underwriters, and any such action taken by the Underwriters jointly or by
[managing Underwriter] alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication.
Notices to the Underwriters shall be given to them at [address of
managing Underwriter]. Notices to the Company shall be given to it at Trinova
Corporation, 3000 Strayer, Maumee, Ohio 43537-0050, Attention: James E.
Kline, Vice President and General Counsel, Telecopier No: (419) 867-2209.
21
<PAGE> 22
13. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the
same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
Very truly yours,
TRINOVA Corporation
By: ___________________
Name:
Title:
Accepted: ________, 199_
[Name(s) of Underwriter(s)]
By: [Name of Managing Underwriter]
On behalf of each of the Underwriters
By: ___________________________
Name:
Title:
22
<PAGE> 23
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount
Underwriter of Securities
- ------------------------------------------------------------- -----------------
<S> <C>
[Name(s) of Underwriter(s)] . . . . . . . . . . . . . . . . . $___________
-----------------
Total $___________
=================
</TABLE>
<PAGE> 1
EXHIBIT (4)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TRINOVA CORPORATION
AND
NBD BANK,
TRUSTEE
------------------------
INDENTURE
DATED AS OF MARCH , 1996
------------------------
DEBT SECURITIES
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
CROSS-REFERENCE SHEET*
BETWEEN
Provisions of Sections 310 through 318(a) of the Trust Indenture Act of 1939 and
the within Indenture between TRINOVA Corporation and NBD Bank, Trustee:
<TABLE>
<CAPTION>
SECTION OF ACT SECTION OF INDENTURE
- --------------------------------------------------- ---------------------
<S> <C>
310(a)(1) and (2).................................. 7.09
310(a)(3) and (4).................................. Not applicable
310(b)............................................. 7.08 and 7.10(b)
310(c)............................................. Not applicable
311(a) and (b)..................................... 7.13
311(c)............................................. Not applicable
312(a)............................................. 5.01 and 5.02(a)
312(b) and (c)..................................... 5.02(b) and (c)
313(a)............................................. 5.04
313(b)(1).......................................... Not applicable
313(b)(2).......................................... 5.04
313(c)............................................. 5.04
313(d)............................................. 5.04
314(a)............................................. 5.03
314(b)............................................. Not applicable
314(c)(l) and (2).................................. 14.04
314(c)(3).......................................... Not applicable
314(d)............................................. Not applicable
314(e)............................................. 14.04
314(f)............................................. Not applicable
315(a), (c) and (d)................................ 7.01
315(b)............................................. 6.07
315(e)............................................. 6.08
316(a)(l).......................................... 6.01 and 6.06
316(a)(2).......................................... Omitted
316(a) last sentence............................... 8.04
316(b)............................................. 6.04
316(c)............................................. 8.02
317(a)............................................. 6.02
317(b)............................................. 4.03(a)
318(a)............................................. 14.06
</TABLE>
- ------------
*This Cross-Reference Sheet is not part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS*
------------------
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C>
PARTIES........................................................ 1
RECITALS....................................................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions................................. 1
Additional Amounts.......................... 2
Attributable Debt........................... 2
Authorized Newspaper........................ 2
Board of Directors.......................... 3
Board Resolution............................ 3
Business Day................................ 3
Company..................................... 3
Company Order............................... 3
Consolidated Net Tangible Assets............ 3
Corporation................................. 4
Coupon...................................... 4
Coupon Security............................. 4
Debt........................................ 4
Depositary.................................. 4
Event of Default............................ 4
Funded Debt................................. 4
Global Security............................. 5
Holder...................................... 5
Indenture................................... 5
Interest.................................... 5
Interest Payment Date....................... 5
Mortgage.................................... 5
Officers' Certificate....................... 6
Opinion of Counsel.......................... 6
Original Issue Discount Securities.......... 6
Outstanding................................. 7
Person...................................... 7
Place of Payment............................ 7
Principal Property.......................... 7
Registered Security......................... 8
Regular Record Date......................... 8
Responsible Officer......................... 8
</TABLE>
- ------------
*The Table of Contents is not part of the Indenture.
<PAGE> 4
ii
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C> <C>
Restricted Subsidiary....................... 8
Secured Debt................................ 8
Security Register and Security Registrar.... 8
Subsidiary.................................. 9
Trust Indenture Act of 1939................. 9
United States............................... 9
Unregistered Security....................... 9
U.S. Dollar................................. 9
U.S. Person................................. 9
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited; Issuable in Series........ 10
SECTION 2.02. Form of Trustee's Certificate of
Authentication.............................. 12
SECTION 2.03. Form, Execution, Authentication, Delivery
and Dating of Securities.................... 12
SECTION 2.04. Denominations; Record Date.................. 14
SECTION 2.05. Exchange and Registration of Transfer of
Securities.................................. 15
SECTION 2.06. Temporary Securities........................ 17
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen
Securities.................................. 18
SECTION 2.08. Cancellation................................ 19
SECTION 2.09. Computation of Interest..................... 20
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption of Securities; Applicability of
Article..................................... 20
SECTION 3.02. Notice of Redemption; Selection of
Securities.................................. 20
SECTION 3.03. Payment of Securities Called for
Redemption.................................. 21
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium, Interest and
Additional Amounts.......................... 22
SECTION 4.02. Offices for Notices and Payments, etc....... 23
SECTION 4.03. Provisions as to Paying Agent............... 24
SECTION 4.04. Luxembourg Publications..................... 24
</TABLE>
<PAGE> 5
iii
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C> <C>
SECTION 4.05. Limitation on Liens......................... 25
SECTION 4.06. Limitation on Sale and Lease-back........... 26
SECTION 4.07. Statement by Officers as to Default......... 26
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists........................ 27
SECTION 5.02. Preservation and Disclosure of Lists........ 27
SECTION 5.03. Reports by the Company...................... 29
SECTION 5.04. Reports by the Trustee...................... 29
ARTICLE SIX
REMEDIES ON DEFAULT
SECTION 6.01. Events of Default........................... 29
SECTION 6.02. Payment of Securities on Default; Suit
Therefor.................................... 32
SECTION 6.03. Application of Moneys Collected by
Trustee..................................... 34
SECTION 6.04. Proceedings by Securityholders.............. 35
SECTION 6.05. Remedies Cumulative and Continuing.......... 36
SECTION 6.06. Direction of Proceedings.................... 36
SECTION 6.07. Notice of Defaults.......................... 36
SECTION 6.08. Undertaking to Pay Costs.................... 37
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities of Trustee...... 37
SECTION 7.02. Reliance on Documents, Opinions, etc........ 38
SECTION 7.03. No Responsibility for Recitals, etc......... 39
SECTION 7.04. Ownership of Securities or Coupons.......... 39
SECTION 7.05. Moneys to be Held in Trust.................. 40
SECTION 7.06. Compensation and Expenses of Trustee........ 40
SECTION 7.07. Officers' Certificate as Evidence........... 40
SECTION 7.08. Conflicting Interest of Trustee............. 41
SECTION 7.09. Eligibility of Trustee...................... 41
SECTION 7.10. Resignation or Removal of Trustee........... 41
</TABLE>
<PAGE> 6
iv
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C> <C>
SECTION 7.11. Acceptance by Successor Trustee............. 42
SECTION 7.12. Successor by Merger, etc.................... 44
SECTION 7.13. Limitations on Rights of Trustee as
Creditor.................................... 44
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Action by Securityholders................... 47
SECTION 8.02. Proof of Execution by Securityholders....... 48
SECTION 8.03. Who Are Deemed Absolute Owners.............. 49
SECTION 8.04. Company-Owned Securities Disregarded;
Pledged Securities.......................... 49
SECTION 8.05. Revocation of Consents; Future
Securityholders Bound....................... 50
SECTION 8.06. Securities in a Foreign Currency............ 50
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meetings........................ 51
SECTION 9.02. Call of Meetings by Trustee................. 51
SECTION 9.03. Call of Meetings by Company or
Securityholders............................. 52
SECTION 9.04. Qualification for Voting.................... 52
SECTION 9.05. Regulations................................. 52
SECTION 9.06. Voting...................................... 53
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of
Securityholders............................. 53
SECTION 10.02. Supplemental Indentures with Consent of
Securityholders............................. 55
SECTION 10.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures.................. 56
SECTION 10.04. Notation on Securities...................... 56
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, etc., on Certain
Terms....................................... 57
SECTION 11.02. Successor Corporation Substituted........... 57
SECTION 11.03. Opinion of Counsel to be Given Trustee...... 58
</TABLE>
<PAGE> 7
v
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C> <C>
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture...................... 58
SECTION 12.02. Satisfaction, Discharge and Defeasance of
Securities of any Series.................... 58
SECTION 12.03. Deposited Moneys to be Held in Trust by
Trustee..................................... 60
SECTION 12.04. Paying Agent to Repay Moneys Held........... 60
SECTION 12.05. Return of Unclaimed Moneys.................. 60
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Securities Solely Corporate
Obligations................................. 61
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Benefits of Indenture Restricted to Parties
and Securityholders......................... 61
SECTION 14.02. Provisions Binding on Company's
Successors.................................. 61
SECTION 14.03. Addresses for Notices, etc.................. 61
SECTION 14.04. Evidence of Compliance with Conditions
Precedent 62
SECTION 14.05. Legal Holidays.............................. 62
SECTION 14.06. Trust Indenture Act to Control.............. 62
SECTION 14.07. Execution in Counterparts................... 62
SECTION 14.08. Ohio Contract............................... 63
Acceptance of Trust by Trustee.............. 63
Testimonium................................. 63
Signatures and Seals........................ 63
Acknowledgments............................. 64
</TABLE>
<PAGE> 8
THIS INDENTURE, dated as of the day of March, 1996 between TRINOVA
CORPORATION, a corporation duly organized and existing under the laws of the
State of Ohio (hereinafter sometimes called the "Company"), party of the first
part, and NBD BANK, a national banking association duly incorporated and
existing under the laws of the United States of America (hereinafter sometimes
called the "Trustee", which term shall include any successor trustee appointed
pursuant to Article Seven), party of the second part.
WITNESSETH:
WHEREAS, the Company deems it necessary to issue from time to time for its
lawful purposes securities (hereinafter called the "Securities" or, in the
singular, "Security") evidencing its unsecured indebtedness and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of the Securities in one or more series, unlimited as to principal
amount, to bear such rates of interest, to mature at such time or times and to
have such other provisions as shall be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts and things necessary to
constitute this document as a valid indenture and agreement according to its
terms have been done and performed, and the execution of this Indenture has in
all respects been duly authorized, and the Company, in the exercise of legal
rights and power in it vested, is executing this Indenture;
NOW, THEREFORE, in order to declare the terms and conditions upon which the
Securities are authenticated, issued and received, and in consideration of the
premises, of the purchase and acceptance of the Securities by the Holders
thereof and of such other consideration the sufficiency and receipt of which the
Trustee hereby acknowledges, the Company covenants and agrees with the Trustee,
for the equal and proportionate benefit of the respective Holders from time to
time of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this Section (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act of 1939 and
the Securities Act of 1933, as amended, shall have the meanings (except as
herein otherwise expressly provided or unless the context otherwise requires)
assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of this Indenture as originally executed.
<PAGE> 9
2
ADDITIONAL AMOUNTS
The term "Additional Amounts" shall mean any additional amounts which are
required by a Security or by or pursuant to a supplemental indenture or Board
Resolution under circumstances specified therein, to be paid by the Company in
respect of certain taxes, assessments or governmental charges imposed on certain
Holders of Securities and which are owing to such Holders of Securities.
ATTRIBUTABLE DEBT
The term "Attributable Debt" means, at the time of determination as to any
lease, the lesser of (A) the fair value of the property subject to such lease
(as determined in good faith by the Board of Directors of the Company) or (B)
the present value (discounted at the actual rate, if stated, or, if no rate is
stated, the implicit rate of interest of such lease transaction as determined,
in good faith, by the chairman of the Board of Directors, the president, any
vice president, the treasurer or any assistant treasurer of the Company),
calculated using the interval of scheduled rental payments under such lease, of
the obligation of the lessee for net rental payments during the remaining term
of such lease (excluding any subsequent renewal or other extension options held
by the lessee). The term "net rental payments" means, with respect to any lease
for any period, the sum of the rental and other payments required to be paid in
such period by the lessee thereunder, but not including, however, any amounts
required to be paid by such lessee (whether or not designated as rental or
additional rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates, indemnities or similar charges required to be paid by
such lessee thereunder or any amounts required to be paid by such lessee
thereunder contingent upon the amount of sales, earnings or profits of the
lessee with respect to such leased property or of maintenance and repairs,
insurance, taxes, assessments, water rates, indemnities or similar charges;
provided, however, that, in the case of any lease which is terminable by the
lessee upon the payment of a penalty in an amount which is less than the total
discounted net rental payments required to be paid from the later of the first
date upon which such lease may be so terminated and the date of the
determination of net rental payments, "net rental payments" shall include the
then current amount of such penalty from the later of such two dates, and shall
exclude the rental payments relating to the remaining period of the lease
commencing with the later of such two dates.
AUTHORIZED NEWSPAPER
The term "Authorized Newspaper" shall mean a newspaper in an official
language of the country of publication of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof which
is made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
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BOARD OF DIRECTORS
The term "Board of Directors" shall mean the Board of Directors of the
Company or any committee of the Board of Directors duly authorized to exercise
the powers and authority of the Board of Directors with respect to this
Indenture or any Security.
BOARD RESOLUTION
The term "Board Resolution" shall mean a resolution certified by the
Secretary or Assistant Secretary of the Company to have been duly adopted by, or
pursuant to the authority of, the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
BUSINESS DAY
The term "Business Day" shall mean, with respect to any Security, a day
(other than a Saturday or Sunday) that in the city (or in any of the cities, if
more than one) in which amounts are payable, as specified on the face of the
form of such Security, is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order to
close.
COMPANY
The term "Company" shall mean 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 ORDER
The term "Company Order" means a written order signed in the name of the
Company by the Chairman of the Board of Directors or the President or any
Executive Vice President or any Vice President or the Treasurer and by the
Secretary or any Assistant Secretary or, if the other signatory is other than
the Treasurer, any Assistant Treasurer of the Company.
CONSOLIDATED NET TANGIBLE ASSETS
The term "Consolidated Net Tangible Assets" means the total assets on a
consolidated balance sheet of the Company and the Restricted Subsidiaries (less
applicable reserves and other properly deductible items) less: (A) current
liabilities, including the current portion of long-term debt; (B) all other
liabilities except deferred income taxes and Funded Debt; (C) goodwill, trade
names, trademarks, patents, organization expenses, unamortized debt discount and
expense less unamortized debt premium and other like intangibles (other than
deferred charges and prepaid expenses); (D) adjustments for minority interests;
and (E) equity in and net advances to Subsidiaries which are not Restricted
Subsidiaries and entities accounted for on the
<PAGE> 11
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equity method of accounting. The calculation of Consolidated Net Tangible Assets
shall be made using the Company's latest available consolidated statement of
financial position.
CORPORATION
The term "corporation" shall include corporations, associations, companies
and business trusts.
COUPON
The term "coupon" shall mean any interest coupon appertaining to a
Security.
COUPON SECURITY
The term "Coupon Security" shall mean any Security authenticated and
delivered with one or more coupons appertaining thereto.
DEBT
The term "Debt" includes notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed and guarantees thereof.
DEPOSITARY
The term "Depositary" shall mean, with respect to the Securities of any
series issuable or issued in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to Section 2.05, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Global Securities of that series.
EVENT OF DEFAULT
The term "Event of Default" shall mean any event specified as such in
Section 6.01.
FUNDED DEBT
The term "Funded Debt" means indebtedness for borrowed money owed or
guaranteed by a Person and any other indebtedness which under generally accepted
accounting principles would appear as debt on a balance sheet of such Person,
which matures by its terms more than twelve months from the date as of which
Funded Debt is to be determined or is extendible or renewable at the option of
the obligor to a date more than twelve months from the date as of which Funded
Debt is to be determined.
<PAGE> 12
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GLOBAL SECURITY
The term "Global Security" shall mean a Security issued in definitive
registered form without coupons, evidencing all or a part of an issuance of
Securities of any series, and issued to the Depositary for such series in
accordance with Section 2.03, and bearing the legend prescribed in Section 2.03.
HOLDER
The terms "Holder", "Holder of Securities", "Securityholder" or other
similar terms, shall mean (a) in the case of any Registered Security, the person
in whose name such Security is registered on the registration books kept for
that purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security.
INDENTURE
The term "Indenture" shall mean 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.
INTEREST
The term "Interest" shall mean, when used with respect to non-interest
bearing Securities, interest payable after maturity.
INTEREST PAYMENT DATE
The term "Interest Payment Date," when used with respect to any Security,
means the stated maturity of an instalment of interest on such Security.
MORTGAGE
The term "Mortgage" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar encumbrance
which has been granted or otherwise consented to by the Company. Notwithstanding
the foregoing, the following liens shall, for purposes of this Indenture, not be
deemed to be Mortgages:
(a) liens for taxes if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Company or the appropriate Restricted Subsidiary,
as the case may be;
(b) liens arising from any attachment being contested in good faith by
appropriate proceedings and any lien arising from a judgment or award so long as
a subsisting stay of execution or enforcement thereof has been obtained;
<PAGE> 13
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(c) other liens incidental to the conduct of the Company's or any
Restricted Subsidiary's business or the ownership of any of their respective
property and assets (including, without limitation, carriers', warehousemen's,
mechanics', materialmen's and vendors' liens) which do not, in the opinion of
the Company or any Restricted Subsidiary, in the aggregate materially detract
from the value of the property or assets of the Company and its Restricted
Subsidiaries, taken as a whole, or materially impair their use in the operation
of the business of the Company or such Restricted Subsidiary, as the case may
be;
(d) liens arising from pledges or deposits in connection with workmen's
compensation, unemployment insurance and other legislation;
(e) liens arising from deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of
business;
(f) liens arising from minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of any Principal Property of the
Company or a Restricted Subsidiary, which encumbrances, easements, reservations,
rights and restrictions do not, in the opinion of the Company, in the aggregate
materially detract from the value of the property or assets of the Company and
its Restricted Subsidiaries, taken as a whole, or materially impair their use in
the operation of the business of the Company or such Restricted Subsidiary, as
the case may be; and
(g) liens created, incurred or assumed in connection with any tax free
financing.
OFFICERS' CERTIFICATE
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board of Directors or the President or any Executive Vice
President or any Vice President or the Treasurer and by the Secretary or any
Assistant Secretary or, if the other signatory is other than the Treasurer, any
Assistant Treasurer of the Company.
OPINION OF COUNSEL
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company, or who may
be other counsel acceptable to the Trustee.
ORIGINAL ISSUE DISCOUNT SECURITIES
The term "Original Issue Discount Securities" shall mean any Securities
which are initially sold at a discount from the principal amount thereof and
which provide upon Event of Default for declaration of an amount less than the
principal amount thereof to be due and payable upon acceleration thereof.
<PAGE> 14
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OUTSTANDING
The term "Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 7.08 and Section 8.04, mean, as of any
particular time, all Securities authenticated and delivered by the Trustee under
this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which
moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent), provided, that if such Securities are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given as in
Article Three provided, or provisions satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in lieu of and in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section
2.07, unless proof satisfactory to the Trustee is presented that any such
Securities are held by bona fide Holders in due course.
PERSON
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PLACE OF PAYMENT
The term "Place of Payment," when used with respect to the Securities of
any series, means the office or agency of the Company in Detroit, Michigan,
designated and maintained by the Company pursuant to Section 4.02 and such other
place or places where the principal of (and premium, if any) and interest (and
Additional Amounts, if any) on the Securities of that series are payable as
specified as contemplated by Sections 2.01 and 2.04.
PRINCIPAL PROPERTY
The term "Principal Property" means any manufacturing or processing plant
or warehouse owned at the date hereof by the Company or any of its Subsidiaries
or hereafter acquired by the Company or any of its Subsidiaries which is located
within the United States of America or Canada and the gross book value
(including related land and improvements thereon and all machinery and equipment
included therein without deduction of any depreciation reserves) of which on the
date as of which the determination is being made exceeds 1% of Consolidated Net
Tangible Assets, other than (i) any property which the Board of Directors
determines, in good faith, is not of
<PAGE> 15
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material importance to the total business conducted by the Company and its
Subsidiaries as an entirety or (ii) any portion of a particular property which
is similarly found not to be of material importance to the use or operation of
such property.
REGISTERED SECURITY
The term "Registered Security" shall mean any Security registered on the
Security registration books of the Company.
REGULAR RECORD DATE
The term "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 Sections 2.01 and 2.04.
RESPONSIBLE OFFICER
The term "responsible officer" when used with respect to the Trustee shall
mean the chairman of the board of directors, any vice-chairman of the board of
directors, the chairman of the executive committee, the vice-chairman of the
executive committee, the president, any vice president, the cashier, the
secretary, the treasurer, any senior trust officer or trust officer, any
assistant vice president or any other officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
RESTRICTED SUBSIDIARY
The term "Restricted Subsidiary" means any Subsidiary which (A) owns an
interest in a Principal Property or (B) substantially all of the business of
which is carried on within the United States of America or Canada.
SECURED DEBT
The term "Secured Debt" means any Debt (whether now existing or hereafter
created) of the Company or any Restricted Subsidiary, secured by a Mortgage on
any Principal Property (or portion thereof) or on any shares of stock or
indebtedness of a Restricted Subsidiary held by the Company or any Restricted
Subsidiary (including any such stock or indebtedness hereafter acquired).
SECURITY REGISTER AND SECURITY REGISTRAR
The term "Security Register" and "Security Registrar" shall have the
respective meanings specified in Section 2.05.
<PAGE> 16
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SUBSIDIARY
The term "Subsidiary" means any corporation of which at least a majority of
the outstanding stock having by the terms thereof ordinary voting power to elect
a majority of the board of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by the Company, or by one or more
Subsidiaries, or by the Company and one or more Subsidiaries.
TRUST INDENTURE ACT OF 1939
Except as otherwise provided in Sections 10.01, 10.02, 10.03 and 14.06, the
terms "Trust Indenture Act of 1939" and "Trust Indenture Act" shall mean the
Trust Indenture Act of 1939 as in force at the date of this Indenture as
originally executed.
UNITED STATES
The term "United States" shall mean the United States of America, its
territories, possessions and other areas subject to its jurisdiction, including
the Commonwealth of Puerto Rico.
UNREGISTERED SECURITY
The term "Unregistered Security" shall mean any Security other than a
Registered Security.
U.S. DOLLAR
The term "U.S. Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
U.S. PERSON
The term "U.S. person" shall mean a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof or an
estate or trust the income of which is subject to United States Federal income
tax regardless of its source.
<PAGE> 17
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ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
SECTION 2.01. 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 set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(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 Sections 2.05, 2.06, 2.07, 3.02 or 10.04);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates, which may be fixed or variable, at which the
Securities of the series shall bear interest, if any, and if the rate is
variable, the manner of calculation thereof, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and, in the case of Registered Securities the
Regular Record Date for the determination of Holders of such Securities to
whom interest is payable on any Interest Payment Date;
(5) the place or places (in addition to such place or places specified
in this Indenture) where the principal of (and premium, if any), interest,
if any, and Additional Amounts, if any, 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;
(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 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 U.S. Dollars, the currency or currencies, or units,
including European Currency Units ("ECUs"), based on or related to
currencies, in which
<PAGE> 18
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the Securities of the series shall be denominated and in which payments of
principal of, any premium on, interest on, if any, and any other amounts
payable with respect to such Securities shall or may be payable;
(9) the denominations in which Securities of the series shall be
issuable, if other than $1,000 or integral multiples thereof with respect
to Registered Securities and denominations of $1,000 and $5,000 for
Unregistered Securities;
(10) 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 or which the Trustee
shall be entitled to claim pursuant to Section 6.02;
(11) whether the Securities of the series will be issuable as
Registered Securities or Unregistered Securities (with or without coupons),
or both, any restrictions applicable to the offer, sale or delivery of
Unregistered Securities and, if other than as provided for in Section 2.05,
the terms upon which Unregistered Securities of the series may be exchanged
for Registered Securities of such series and vice versa;
(12) whether and under what circumstances the Company will pay
Additional Amounts on the Securities of the series held by a person who is
not a U.S. Person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the option
to redeem such Securities rather than pay such Additional Amounts;
(13) the provisions, if any, for the defeasance of the Securities of
the series;
(14) whether the Securities of the series shall be issued as, or
exchanged for, in whole or in part, one or more Global Securities, and, in
such case, the terms upon which interests in such Global Security or
Securities shall be exchangeable by the Company or the holder thereof for
definitive Securities and the identity of the Depositary for such Global
Security or Securities; and
(15) any other terms 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
(i) as to denomination and (ii) that Securities of any series may be issuable as
either Registered Securities or Unregistered Securities and (iii) as may
otherwise be provided in or pursuant to such Board Resolution and set forth in
such Officers' Certificate or in any such indenture supplemental hereto.
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 any Assistant Secretary of the Company and
delivered to the Trustee at the same time as or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
<PAGE> 19
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SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in the following form:
This is one of the Securities of the series designated and referred to in
the within-mentioned Indenture.
NBD BANK, as Trustee
By:
Authorized Officer
SECTION 2.03. Form, Execution, Authentication, Delivery and Dating of
Securities. The Securities of each series and the coupons, if any, to be
attached thereto, shall be in the forms approved from time to time by or
pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Each Security and coupon shall be executed on behalf of the Company by its
Chairman of the Board of Directors or its President or any Executive Vice
President or any Vice President and by its Treasurer or any Assistant Treasurer
or its Secretary or any Assistant Secretary, under its corporate seal. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities.
Each Security and coupon 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 Security, or
the Security to which such coupon appertains. 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 and, in the case of Coupon
Securities, having attached thereto appropriate coupons, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities or coupons of the series have been established in or pursuant to
one or more Board Resolutions as permitted by this Section and Section 2.01, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating:
<PAGE> 20
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(a) if the form of such Securities or coupons has been established by
or pursuant to Board Resolution as permitted by Section 2.01, 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 2.01, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that each such Security and coupon, 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 its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general equity principles.
If such form or terms has 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 the Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Every Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in or pursuant to the
Board Resolution or supplemental indenture referred to in Section 2.01 or, if no
such terms are specified, the date of its original issuance.
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.
If the Company shall establish pursuant to this Section 2.03 that the
Securities of a series may be issued in the form of one or more Global
Securities, then the Company may execute and the Trustee shall, in accordance
with this Section, authenticate and deliver one or more Global Securities that
(i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities to be represented by such Global
Security or Securities, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect or such other legend as may be required by the Depositary:
"Unless this certificate is presented by an authorized representative of the
Depositary to the Company or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of the Depositary
or a nominee of the Depositary or in such other name as requested by an
authorized representative of the
<PAGE> 21
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Depositary (and any payment is made to the Depositary or a nominee of the
Depositary or to such other entity as is requested by an authorized
representative of the Depositary), any transfer, pledge or other use hereof for
value or otherwise by or to any person is wrongful since the registered owner
hereof, has an interest herein."
Each Depositary designated for a Global Security must be, at the time of
its designation and at all times while it serves as Depositary, a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
SECTION 2.04. Denominations; Record Date. The Securities shall be
issuable as Registered Securities or Unregistered Securities in such
denominations as may be specified as contemplated in Section 2.01. In the
absence of any such specification with respect to any series, such Securities
shall be issuable in the denominations contemplated by Section 2.01.
The term "record date" as used with respect to an Interest Payment Date
(except a date for payment of defaulted interest) shall mean such day or days as
shall be specified in the terms of the Registered Securities of any particular
series as contemplated by Section 2.01; provided, however, that in the absence
of any such provisions with respect to any series, such term shall mean (1) the
last day of the calendar month next preceding such Interest Payment Date if such
Interest Payment Date is the fifteenth day of a calendar month; or (2) the
fifteenth day of a calendar month next preceding such Interest Payment Date if
such Interest Payment Date is the first day of the calendar month; provided,
further, that if the day which would be the record date as provided herein shall
be a day on which banking institutions in The City of New York or Detroit,
Michigan are authorized by law or required by executive order to close, then it
shall mean the next preceding day which shall not be a day on which such
institutions are so authorized or required to close.
The person in whose name any Registered Security is registered at the close
of business on the Regular Record Date with respect to an Interest Payment Date
shall be entitled to receive the interest payable and Additional Amounts, if
any, payable on such Interest Payment Date notwithstanding the cancellation of
such Registered Security upon any transfer or exchange thereof subsequent to
such Regular Record Date and prior to such Interest Payment Date; provided,
however, that if and to the extent the Company shall default in the payment of
the interest and Additional Amounts, if any, due on such Interest Payment Date,
such defaulted interest and Additional Amounts, if any, shall be paid to the
persons in whose names Outstanding Registered Securities are registered on a
subsequent record date established by notice given by mail by or on behalf of
the Company to the Holders of Securities of the series in default not less than
fifteen days preceding such subsequent record date, such record date to be not
less than five days preceding the date of payment of such defaulted interest.
<PAGE> 22
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SECTION 2.05. Exchange and Registration of Transfer of
Securities. Registered Securities of any series may be exchanged for a like
aggregate principal amount of Registered Securities of other authorized
denominations of such series. Registered Securities to be exchanged shall be
surrendered at the office or agency to be designated and maintained by the
Company for such purpose in Detroit, Michigan in accordance with the provisions
of Section 4.02, and the Company shall execute and register and the Trustee
shall authenticate and deliver in exchange therefor the Registered Security or
Registered Securities which the Holder making the exchange shall be entitled to
receive.
If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.01, at
the option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series of any authorized
denominations and of a like aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 4.02, with, in the
case of Unregistered Securities that are Coupon Securities, all unmatured
coupons and all matured coupons in default thereto appertaining. At the option
of the Holder thereof, if Unregistered Securities of any series are issued in
more than one authorized denomination, except as otherwise specified pursuant to
Section 2.01, such Unregistered Securities may be exchanged for Unregistered
Securities of such series of other authorized denominations and of a like
aggregate principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.02 or as specified pursuant to Section 2.01, with,
in the case of Unregistered Securities that are Coupon Securities, all unmatured
coupons and all matured coupons in default thereto appertaining. Unless
otherwise specified pursuant to Section 2.01, Registered Securities of any
series may not be exchanged for Unregistered Securities of such series. 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.
The Company (or its designated agent (the "Security Registrar")) shall
keep, at such office or agency, a Security Register (the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall register Securities and shall register the transfer of Registered
Securities as in this Article Two provided. The Security Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. At all reasonable times the Security Register shall be
open for inspection by the Trustee. Upon due presentment for registration of
transfer of any Registered Security of a particular series at such office or
agency, the Company shall execute and the Company or the Security Registrar
shall register and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities of
such series for an equal aggregate principal amount.
<PAGE> 23
16
Unregistered Securities (except for any temporary bearer Securities) and
coupons shall be transferable by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment, as the case may be, shall (if so required by the Company
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Registered Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
The Company shall not be required to exchange or register a transfer of (a)
any Registered Securities of any series for a period of fifteen days next
preceding any selection of such Registered Securities of such series to be
redeemed, or (b) any Security of any such series selected for redemption except,
in the case of any such series to be redeemed in part, the portion thereof not
to be so redeemed.
Notwithstanding anything herein or in the terms of any series of Securities
to the contrary, neither the Company nor the Trustee (which shall rely on an
Officers' Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Company (including the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on any Securities) under then
applicable United States Federal income tax laws.
Notwithstanding any other provision of this Section 2.05 to the contrary,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form without coupons, a Global Security representing all
or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series represented by
one or more Global Securities notifies the Company that it is unwilling or
unable to continue as Depositary for the Securities of such series or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.03, the Company shall appoint a successor Depositary with respect to
the Securities. If (i) the Depositary for Securities of a series represented by
one or more Global Securities is at any time unwilling or unable to continue as
Depositary or the Depositary for the Securities of such series ceases to be a
clearing agency registered under the Securities Exchange Act of 1934 and a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility or (ii) the
<PAGE> 24
17
Company executes and delivers to the Trustee an order to the effect that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities, the
Company's election pursuant to Section 2.01 that the Securities of such series
be represented by one or more Global Securities shall no longer be effective
with respect to the Securities of such series, and the Company shall execute,
and the Trustee, upon receipt of an order of the Company for the authentication
and delivery of definitive Securities of such series, shall authenticate and
deliver Securities of such series in definitive registered form without coupons,
in any authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such
Securities in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 2.01 with respect to a
series of Securities represented by a Global Security, the Depositary for such
Global Security may surrender such Global Security in exchange in whole or in
part for Securities of the same series in definitive registered form without
coupons on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of an order
for the authentication and delivery of definitive Securities of such series
shall authenticate and deliver, without service charge,
(i) to the Persons specified by such Depositary a new Security or
Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form without coupons, in authorized denominations, such Global
Security shall be cancelled by the Trustee. Securities in definitive registered
form without coupons issued in exchange for a Global Security pursuant to this
Section 2.05 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
SECTION 2.06. 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 of such series
(printed or lithographed). Temporary Securities of any series shall be issuable
in any authorized denominations, and in the form approved from time to time by
or pursuant to a Board
<PAGE> 25
18
Resolution but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Every temporary Security shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Securities. Without unnecessary delay
the Company shall execute and shall furnish definitive Securities of such series
and thereupon any or all temporary Registered Securities of such series may be
surrendered in exchange therefor without charge at the office or agency to be
designated and maintained by the Company for such purpose in Detroit, Michigan
in accordance with the provisions of Section 4.02 and in the case of
Unregistered Securities at any agency maintained by the Company for such purpose
as specified pursuant to Section 2.01, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and in the case of such Securities that are Coupon Securities, having attached
thereto the appropriate coupons. Until so exchanged the temporary Securities of
any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series. The provisions of this Section 2.06 are
subject to any restrictions or limitations on the issue and delivery of
temporary Unregistered Securities of any series that may be established pursuant
to Section 2.01 (including any provision that Unregistered Securities of such
series initially be issued in the form of a single global Unregistered Security
to be delivered to a depositary or agency of the Company located outside the
United States and the procedures pursuant to which definitive Unregistered
Securities of such series would be issued in exchange for such temporary global
Unregistered Security).
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case
any temporary or definitive Security of any series or, in the case of a Coupon
Security, any coupon appertaining thereto, shall become mutilated or be
destroyed, lost or stolen, the Company in the case of a mutilated Security or
coupon shall, and in the case of a lost, stolen or destroyed Security or coupon
may, in its discretion, execute, and upon Company Order the Trustee shall
authenticate and deliver, a new Security of the same series as the mutilated,
destroyed, lost or stolen Security or, in the case of a Coupon Security, a new
Coupon Security of the same series as the mutilated, destroyed, lost or stolen
Coupon Security or, in the case of a coupon, a new Coupon Security of the same
series as the Coupon Security to which such mutilated, destroyed, lost or stolen
coupon appertains, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen or in exchange for
the Coupon Security to which such mutilated, destroyed, lost or stolen coupon
appertains, with all appurtenant coupons not destroyed, lost or stolen. In every
case the applicant for a substituted Security or coupon shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Security
<PAGE> 26
19
or coupon, as the case may be, and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the written
request or authorization of any officer of the Company. Upon the issuance of any
substituted Security or coupon, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith and in addition a
further sum not exceeding ten dollars for each Security so issued in
substitution. In case any Security or coupon which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substituted Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Security or
coupon) if the applicant for such payment shall furnish the Company with such
security or indemnity as it may require to save it harmless and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company of the
destruction, loss or theft of such Security or coupon and of the ownership
thereof.
Every substituted Security with, in the case of any such Security that is a
Coupon Security, its coupons, issued pursuant to the provisions of this Section
by virtue of the fact that any Security or coupon is destroyed, lost or stolen
shall, with respect to such Security or coupon, constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security or coupon shall be found at any time, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities, and the coupons appertaining thereto, duly issued hereunder.
All Securities and any coupons appertaining thereto shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities and coupons appertaining thereto and shall, to the extent permitted
by law, preclude any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. Cancellation. All Securities surrendered for payment,
redemption, exchange or registration of transfer, and all coupons surrendered
for payment, as the case may be, shall, if surrendered to the Company or any
agent of the Company or of the Trustee, be delivered to the Trustee and promptly
cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no
Securities or coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall destroy
cancelled Securities and coupons and deliver a certificate of destruction to the
Company or, if requested to do so by the Company, shall return such cancelled
Securities and coupons to the Company.
<PAGE> 27
20
SECTION 2.09. Computation of Interest. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption of Securities; Applicability of
Article. Redemption of Securities of any series as permitted or required by the
terms thereof shall be made in accordance with such terms and this Article;
provided, however, that if any provision of any series of Securities shall
conflict with any provision of this Article, the provision of such series of
Securities shall govern.
Notice date for a redemption of Securities shall mean the date on which
notice of such redemption is given in accordance with the provisions of Section
3.02 hereof.
SECTION 3.02. Notice of Redemption; Selection of Securities. In case the
Company shall desire to exercise the right to redeem all, or, as the case may
be, any part of a series of Securities pursuant to the terms and provisions
applicable to such series, it shall fix a date for redemption and shall mail a
notice of such redemption at least thirty and not more than ninety days prior to
the date fixed for redemption to the Holders of the Securities of such series
which are Registered Securities to be redeemed as a whole or in part at their
last addresses as the same appear on the Security Register. Such mailing shall
be by prepaid first class mail. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder shall have received such notice. In any case, failure to give notice
by mail, or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security of such series.
Notice of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and addresses with
the Trustee as described in Section 5.04, shall be given by mailing notice of
such redemption, by first class mail, postage prepaid, at least thirty days and
not more than ninety days prior to the date fixed for redemption, to such
Holders at such addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Company, the Trustee shall make such information
available to the Company for such purpose). Notice of redemption to any other
Holder of an Unregistered Security of such series shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and in an
Authorized Newspaper in London (and, if required by Section 4.04, in an
Authorized Newspaper in Luxembourg), in each case, once in each of two
successive calendar weeks, the first publication to be not less than thirty nor
more than ninety days prior to the date fixed for redemption. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given,
<PAGE> 28
21
whether or not the Holder shall have received such notice. In any case, failure
to give notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security
of such series.
Each such notice of redemption shall specify the date fixed for redemption,
the redemption price at which such Securities are to be redeemed, the Place of
Payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Coupon Securities, of all coupons appertaining
thereto maturing after the date fixed for redemption, that interest and
Additional Amounts, if any, accrued to the date fixed for redemption will be
paid as specified in said notice, and that on and after said date interest, if
any, thereon or on the portions thereof to be redeemed will cease to accrue. If
less than all of the Securities of a series are to be redeemed any notice of
redemption published in an Authorized Newspaper shall specify the numbers of the
Securities to be redeemed. In case any Security is to be redeemed in part only,
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed portion
thereof will be issued of the same series.
Prior to the redemption date specified in the notice of redemption given as
provided in this Section, the Company will deposit in trust with the Trustee or
with one or more paying agents an amount of money sufficient to redeem on the
redemption date all the Securities or portions of Securities so called for
redemption at the appropriate redemption price, together with accrued interest,
if any, to the date fixed for redemption. The Company will give the Trustee
notice of each redemption no later than the date on which notice thereof is
given to the Holders; provided, that if less than all of the Securities of a
series are to be redeemed, the Company will give the Trustee notice at least
forty-five days prior to the date fixed for redemption (unless a shorter notice
is acceptable to the Trustee) as to the aggregate principal amount of Securities
to be redeemed.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such other manner as it shall
deem reasonable and fair, the numbers of the Securities to be redeemed in whole
or in part.
SECTION 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities with respect to which such notice has been given shall become due and
payable on the date and at the Place of Payment stated in such notice at the
applicable redemption price, together with interest, if any (and Additional
Amounts, if any), accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Securities at
the redemption price, together with interest, if any, and Additional Amounts, if
any, accrued to said date) interest on the Securities or portions of Securities
so called for redemption shall cease to accrue. On presentation
<PAGE> 29
22
and surrender of such Securities subject to redemption at said Place of Payment
in said notice specified, the said Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable redemption price,
together with interest, if any, and Additional Amounts, if any, accrued thereon
to the date fixed for redemption. Interest, if any (and Additional Amounts, if
any), maturing on or prior to the date fixed for redemption shall continue to be
payable (but without interest thereon unless the Company shall default in
payment thereof) in the case of Coupon Securities to the bearers of the coupons
for such interest upon surrender thereof, and in the case of Registered
Securities to the Holders thereof registered as such on the Security Register on
the relevant record date subject to the terms and provisions of Section 2.04. At
the option of the Company payment may be made by check to (or to the order of)
the Holders of the Securities or other persons entitled thereto against
presentation and surrender of such Securities.
If any Coupon Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the date fixed for redemption, the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee, if there be furnished to each of them such security or indemnity as
they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities, of authorized
denominations, in aggregate principal amount equal to the unredeemed portion of
the Security so presented of the same series.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium, Interest and Additional
Amounts. The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any), interest, if any, and Additional Amounts, if
any, on each of the Securities at the place, at the respective times and in the
manner provided in the terms of the Securities and in this Indenture. The
interest on Coupon Securities (together with any Additional Amounts) shall be
payable only upon presentation and surrender of the several coupons for such
interest instalments as are evidenced thereby as they severally mature. The
interest, if any, on any temporary bearer Securities (together with any
Additional Amounts) shall be paid, as to the instalments of interest evidenced
by coupons attached thereto, if any, only upon presentation and surrender
thereof, and, as to the other instalments of interest, if any, only upon
presentation of such Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any Additional
Amounts) shall be payable only to or upon the written order of the Holders
thereof and at the option of the Company may be paid by mailing checks for such
interest payable to or upon the order of such
<PAGE> 30
23
Holders at their last addresses as they appear on on the Security Register for
such Securities. Notwithstanding the foregoing, in the case of Global
Securities, each installment of interest on the Securities of any series shall
be made by wire transfer of immediately available funds if appropriate wire
transfer instructions in writing have been received by the Trustee not less than
15 days prior to such Interest Payment Date.
SECTION 4.02. Offices for Notices and Payments, etc. As long as any of
the Securities of a series remain outstanding, the Company will designate and
maintain, in Detroit, Michigan, an office or agency where the Registered
Securities of such series may be presented for registration of transfer and for
exchange as in this Indenture provided, an office or agency where notices and
demands to or upon the Company in respect of the Securities of such series or of
this Indenture may be served and an office or agency where the Securities of
such series may be presented for payment. The Company will give to the Trustee
notice of the location of each such office or agency and of any change in the
location thereof. In case the Company shall fail to maintain any such office or
agency in Detroit, Michigan, or shall fail to give such notice of the location
or of any change in the location thereof, presentations may be made and notices
and demands may be served at the corporate trust office of the Trustee in
Detroit, Michigan, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, notices and demands.
If Unregistered Securities of any series are Outstanding, the Company will
maintain or cause the Trustee to maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of such series are listed) where such Unregistered
Securities, and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States, except, at the option of the
Company, if the Company shall have determined that, pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Company. Notwithstanding the foregoing,
payments in U.S. Dollars with respect to Unregistered Securities of any series
and coupons appertaining thereto which are payable in U.S. Dollars may be made
at an agency of the Company maintained in Detroit, Michigan if such payment in
U.S. Dollars at each agency maintained by the Company outside the United States
for payment on such Unregistered Securities is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Company hereby initially designates NBD Bank, located at 611 Woodward
Avenue, Detroit, Michigan 48226 as the Security Registrar and as the office or
agency of the Company in Detroit, Michigan where the Securities may be presented
for payment and, in the case of Registered Securities, for registration of
transfer and for
<PAGE> 31
24
exchange as in this Indenture provided and where notices and demands to or upon
the Company in respect of the Securities of any series or of this Indenture may
be served.
SECTION 4.03. Provisions as to Paying Agent. (a) Whenever the Company
shall appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,
(1) that it will hold sums held by it as such agent for the payment of
the principal of (and premium, if any), interest, if any, or Additional
Amounts, if any, on the Securities of such series in trust for the benefit
of the Holders of the Securities of such series, or coupons appertaining
thereto, as the case may be, entitled thereto and will notify the Trustee
of the receipt of sums to be so held,
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any
payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any, on the Securities of such series when the same
shall be due and payable, 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.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of (and premium, if any), interest, if any, or
Additional Amounts, if any, on the Securities of any series set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series entitled thereto a sum sufficient to pay such principal (and premium, if
any), interest, if any, or Additional Amounts, if any, so becoming due. The
Company will promptly notify the Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for such
series by it or any paying agent hereunder as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 12.03 and 12.04.
SECTION 4.04. Luxembourg Publications. In the event of the publication of
any notice pursuant to Section 3.02, 6.07, 7.10, 7.11, 9.02, 10.02 or 12.05, the
party making such publication shall also, to the extent that notice is required
so to be given
<PAGE> 32
25
to Holders of Securities of any series by applicable Luxembourg law or stock
exchange regulation, make a similar publication the same number of times in
Luxembourg.
SECTION 4.05. Limitation on Liens. So long as any Securities are
Outstanding, the Company will not, nor will it permit any Restricted Subsidiary
to, issue or assume or guarantee any Secured Debt without in any such case
effectively providing concurrently with the issuance or assumption or guarantee
of any such Secured Debt that the Securities (together with, if the Company
shall so determine, any other indebtedness of the Company or such Restricted
Subsidiary ranking equally with the Securities and then existing or thereafter
created) shall be secured equally and ratably with (or, at the option of the
Company, prior to) such Secured Debt, unless the aggregate amount of such
Secured Debt issued or assumed or guaranteed, together with all other such
Secured Debt of the Company and its Restricted Subsidiaries which (if originally
issued or assumed or guaranteed at such time) would otherwise be subject to the
foregoing restrictions and all Attributable Debt deemed to be Secured Debt
pursuant to Section 4.06 below, but not including Secured Debt permitted to be
secured under clauses (i) through (vi) of the immediately following paragraph,
does not at the time exceed 10% of Consolidated Net Tangible Assets.
This covenant shall not apply to, and there shall be excluded from Secured
Debt: (i) any Debt secured by a Mortgage on property, shares of stock or
indebtedness of any corporation existing at the time such corporation becomes a
Restricted Subsidiary; (ii) any Debt secured by a Mortgage existing on property,
shares of stock or indebtedness at the time of acquisition of such property,
shares of stock or indebtedness by the Company or a Restricted Subsidiary, or a
Mortgage to secure the payment of all or any part of the purchase price of such
property, shares of stock or indebtedness upon the acquisition of such property,
shares of stock or indebtedness by the Company or a Restricted Subsidiary or to
secure any Debt incurred prior to, at the time of, or within 180 days after (A)
in the case of shares of stock or indebtedness, the date of acquisition of such
shares of stock or indebtedness, and (B) in the case of property, the later of
the date of acquisition of such property and the date such property is placed in
service, for the purpose of financing all or any part of the purchase price
thereof, or a Mortgage to secure any Debt incurred for the purpose of financing
the cost to the Company or a Restricted Subsidiary of improvements to such
acquired property; (iii) any Debt secured by a Mortgage of (A) a Restricted
Subsidiary owing to the Company or to another Restricted Subsidiary or (B) the
Company owing to any Restricted Subsidiary; (iv) any Debt secured by a Mortgage
on property of a corporation existing at the time such corporation is merged or
consolidated with the Company or a Restricted Subsidiary or at the time of a
sale, lease or other disposition of the properties of a corporation as an
entirety or substantially as an entirety to the Company or a Restricted
Subsidiary; (v) any Debt secured by a Mortgage on property of the Company or a
Restricted Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of America or any State thereof, or in favor of any other
country, or
<PAGE> 33
26
any political subdivision thereof, 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 all or any part of the
purchase price or the cost of construction of the property subject to such
Mortgage; or (vi) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Debt secured by
a Mortgage referred to in the foregoing clauses (i) to (v), inclusive; provided,
however, that the principal amount of such Debt shall not exceed the principal
amount of Debt 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 which secured the Debt so extended, renewed or replaced
(plus improvements on such property).
SECTION 4.06. Limitation on Sale and Lease-back. So long as any
Securities are Outstanding, the Company will not, nor will it permit any
Restricted Subsidiary to, enter into any arrangement with any Person providing
for the leasing by the Company or any Restricted Subsidiary of any Principal
Property, which property has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such Person, unless either (i) the Company or
such Restricted Subsidiary would be entitled, pursuant to the provisions of the
covenant on limitation on liens described above, to issue, assume, extend, renew
or replace Debt secured by a Mortgage upon such property equal in amount to the
Attributable Debt in respect of such arrangement without equally and ratably
securing the Securities; provided, however, that from and after the date on
which such arrangement becomes effective the Attributable Debt in respect of
such arrangement shall be deemed for all purposes under Section 4.05 above and
this Section 4.06 to be Debt subject to the provisions of Section 4.05 above
(which provisions include the exceptions set forth in clauses (i) through (vi)
of such Section), or (ii) the Company shall apply an amount in cash equal to the
greater of (A) the net proceeds of the sale of the Principal Property so sold
and leased back or (B) the fair market value (as determined in good faith by the
Company's Board of Directors) of the Principal Property so sold and leased back,
to the retirement (other than any mandatory retirement or by way of payment at
maturity), within 180 days of the effective date of any such lease arrangement,
of Funded Debt of the Company or any Restricted Subsidiary (other than Debt
owned by the Company or any Restricted Subsidiary) or the purchase of other
property which will constitute a Principal Property having a fair market value
(as determined in good faith by the Company's Board of Directors) at least equal
to the fair market value of the Principal Property leased in such sale and
lease-back transaction or (iii) such sale and lease-back transaction is between
the Company and a Restricted Subsidiary or between Restricted Subsidiaries. The
provisions of this Section 4.06 shall not apply to any lease arrangements having
a maximum term (including renewal and other extension options) of three years or
less.
SECTION 4.07. Statement by Officers as to Default. The Company will
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Company (which, on the date of execution hereof,
ends on December
<PAGE> 34
27
31) ending after the date hereof, commencing with the current fiscal year, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance or observance of
any term, provision, condition or covenant set forth in Sections 4.05, 4.06 and
11.01 and such other terms, provisions and conditions of this Indenture as are
specified pursuant to Section 2.01 and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which they may have
knowledge.
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee with respect to the
Securities of each series
(a) semi-annually, not later than each Interest Payment Date (in the
case of any series having semi-annual Interest Payment Dates) or not later
than the dates determined pursuant to Section 2.01 (in the case of any
series not having semi-annual Interest Payment Dates) a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of the Regular Record Date (or as
of such other date as may be determined pursuant to Section 2.01 for such
series) therefor, and
(b) at such other times as the Trustee may request in writing, within
thirty days after receipt by the Company of any such request, a list in
such form as the Trustee may reasonably require of the names and addresses
of the Holders of Securities of particular series specified by the Trustee
as of a date not more than fifteen days prior to the time such information
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar any such list shall exclude names and addresses received by the
Trustee in its capacity as Security Registrar, and if and so long as all of the
Securities of any series are Registered Securities, such list shall not be
required to be furnished.
SECTION 5.02. Preservation and Disclosure of Lists. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the Holders of each series of Securities contained
in the most recent list furnished to it as provided in Section 5.01 or received
by the Trustee in its capacity as Security Registrar. The Trustee may destroy
any list furnished to it as provided in Section 5.01 upon receipt of a new list
so furnished.
(b) In case three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of
such series for a period of
<PAGE> 35
28
at least six months preceding the date of such application, and such
application states that the applicants' desire to communicate with other
Holders of Securities of a particular series (in which case the applicants
must hold Securities of such series) or with Holders of all Securities with
respect to their rights under this Indenture or under such Securities and
it 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
(1) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section, or
(2) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of such series or all Securities, as the case may be, whose
name and address appear in the information preserved at the time by the Trustee
in accordance with the provisions of subsection (a) of this Section a copy of
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Securities and Exchange Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such series or all Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If said Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, said Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding
Securities, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of the Company or of the Trustee shall be held
accountable by reason of
<PAGE> 36
29
the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with the provisions of subsection (b) of
this Section, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 5.03. Reports by the Company. The Company covenants to file with
the Trustee and the Securities and Exchange Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as
may be required pursuant to Section 3.14 of the Trust Indenture Act of 1939 at
the times and in the manner provided pursuant thereto; provided that any such
information, documents or reports to be filed with the Securities and Exchange
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is required
to be filed with the Securities and Exchange Commission.
SECTION 5.04. Reports by the Trustee. (a) On or before July 14, 1996 and
on or before July 14 of each year thereafter, so long as any Securities of any
series are Outstanding hereunder, the Trustee shall transmit to the Holders of
Securities of such series and each other person specified in the Trust Indenture
Act a brief report dated as of the preceding May 15 that complies with Section
313(a) of the Trust Indenture Act of 1939 to the extent required thereby. The
Trustee shall also comply with Section 313(b) of the Trust Indenture Act of
1939.
(b) A copy of each such report shall, at the time of such transmission to
Holders of Securities of a particular series, be filed by the Trustee with each
stock exchange upon which the Securities of such series are listed and also with
the Securities and Exchange Commission. The Company agrees to notify the Trustee
when and as the Securities of any series become listed on any stock exchange.
ARTICLE SIX
REMEDIES ON DEFAULT
SECTION 6.01. Events of Default. In case one or more of the following
Events of Default with respect to a particular series of Securities shall have
occurred and be continuing, that is to say:
(a) default in the payment of the principal of (or premium, if any, on) any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any instalment of interest, if any, or in the
payment of any Additional Amount, if any, upon any of the Securities of such
series as and when the same shall become due and payable, and continuance of
such default for a period of thirty days; or
<PAGE> 37
30
(c) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company applicable to such
series of the Securities or contained in this Indenture for a period of ninety
days after the date on which written notice of such failure, requiring the
Company to remedy the same, shall have been given to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least twenty-five percent
in aggregate principal amount of the Securities of such series at the time
outstanding; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of ninety days;
or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors; or
(f) the occurrence of any default under an instrument evidencing or
securing other indebtedness of the Company or any Subsidiary for borrowed money
in excess of the greater of (i) 1% of the Company's shareholders' equity (as
represented on the Company's latest available consolidated statement of
financial position) or (ii) $10 million, resulting in the acceleration of such
indebtedness, which acceleration is not being contested in good faith by the
Company or any such Subsidiary and is not rescinded or annulled pursuant to the
terms of the instrument evidencing or securing such indebtedness;
then if an Event of Default described in clause (a), (b) or (c) shall have
occurred and be continuing, and in each and every such case, unless the
principal amount of all the Securities of such series shall have already become
due and payable, either the Trustee or the Holders of not less than twenty-five
percent in aggregate principal amount of the Securities of all series affected
thereby then outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by Holders of such Securities) may declare the principal
amount of all the Securities (or, with respect to Original Issue Discount
Securities, such lesser amount as may be specified in the terms of such
Securities) of the series affected thereby to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, any provision of this Indenture or the Securities of such series
contained to the contrary notwithstanding, or, if an Event of Default described
in clause (d), (e) or (f) shall have occurred and be continuing, and in each and
every such case, either the Trustee or the Holders of not less than twenty-five
per cent in aggregate principal amount of all
<PAGE> 38
31
the Securities then outstanding hereunder (voting as one class), by notice in
writing to the Company (and to the Trustee if given by Holders of Securities),
may declare the principal of all the Securities not already due and payable (or,
with respect to Original Issue Discount Securities, such lesser amount as may be
specified in the terms of such Securities) to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, any provision of this Indenture or in the Securities to the
contrary notwithstanding. The foregoing provisions, however, are subject to the
conditions that if, at any time after the principal of the Securities of any one
or more or all series, as the case may be, shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
instalments of interest, if any, and all Additional Amounts, if any, due upon
all the Securities of such series or of all the Securities, as the case may be,
and the principal of (and premium, if any, on) all Securities of such series or
of all the Securities, as the case may be (or, with respect to Original Issue
Discount Securities, such lesser amount as may be specified in the terms of such
Securities), which shall have become due otherwise than by acceleration (with
interest, if any, upon such principal and premium, if any, and, to the extent
that payment of such interest is enforceable under applicable law, on overdue
instalments of interest and Additional Amounts, if any, at the same rate as the
rate of interest specified in the Securities of such series, as the case may be
(or, with respect to Original Issue Discount Securities at the rate specified in
the terms of such Securities for interest on overdue principal thereof upon
maturity, redemption or acceleration of such series, as the case may be), to the
date of such payment or deposit), and such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith, and any and all
defaults under the Indenture, other than the nonpayment of amounts which shall
have become due by acceleration, shall have been remedied, then and in every
such case the Holders of a majority in aggregate principal amount of the
Securities of such series (or of all the Securities, as the case may be) then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults with respect to that series or with respect to all Securities, as the
case may be and rescind and annul such declaration and its consequences; but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon. If the
principal of all Securities shall have been declared to be deemed payable
pursuant to this Section 6.01, in determining whether the Holders of a majority
in aggregate principal amount thereof have waived all defaults and rescinded and
annulled such declaration, all series of Securities shall be treated as a single
class and the principal amount of Original Issue Discount Securities shall be
deemed to be the amount declared payable under the terms applicable to such
Original Issue Discount Securities.
<PAGE> 39
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In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such recission and annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the Holders of Securities, as the case may be, shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the Holders of Securities,
as the case may be, shall continue as though no such proceedings had been taken.
SECTION 6.02. Payment of Securities on Default; Suit Therefor. The
Company covenants that (1) in case default shall be made in the payment of any
instalment of interest, if any, on any of the Securities of any series or any
Additional Amounts payable in respect of any of the Securities of any series, as
and when the same shall become due and payable, and such default shall have
continued for a period of thirty days, or (2) in case default shall be made in
the payment of the principal of (or premium, if any, on) any of the Securities
of any series, as and when the same shall have become due and payable, whether
upon maturity of such series or upon redemption or upon declaration or otherwise
- -- then upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders of the Securities of such series, and the coupons, if
any, appertaining to such Securities, the whole amount that then shall have
become due and payable on all such Securities of such series and such coupons,
for principal (and premium, if any) or interest, if any, or Additional Amounts,
if any, as the case may be, with interest upon the overdue principal (and
premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue instalments of interest, if any, and
Additional Amounts, if any, at the same rate as the rate of interest specified
in the Securities of such series (or, with respect to Original Issue Discount
Securities, at the rate specified in the terms of such Securities for interest
on overdue principal thereof upon maturity, redemption or acceleration); and, in
addition thereto, such further amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
reasonable expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or other obligor upon such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon Securities of any series
under Title 11 of the United States Code or any other applicable law, or in case
a receiver or
<PAGE> 40
33
trustee shall have been appointed for the property of the Company or such other
obligor, or in case of any other judicial proceedings relative to the Company or
such other obligor, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Securities of
such series shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal (or, with respect to Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series), and premium, if any, interest, if any, and Additional
Amounts, if any, owing and unpaid in respect of the Securities of such series,
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 reasonable
compensation to the Trustee, its agents, attorneys and counsel, and for
reimbursement of all reasonable expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith)
and of the Holders of the Securities and coupons of such series allowed in any
such judicial proceedings relative to the Company or other obligor upon the
Securities of such series, or to the creditors or property of the Company or
such other obligor, and to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders of such series and of
the Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the Holders of the Securities
and coupons of such series to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of payments directly to the
Securityholders of such series, to pay to the Trustee such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the 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.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities or coupons appertaining to such Securities, or the
production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name and as trustee of an express trust, and any recovery of judgment shall be
for the ratable benefit of the Holders of the Securities or coupons appertaining
thereto.
<PAGE> 41
34
In case of a default hereunder the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 6.02 shall be applied in the order
following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, if any, or Additional Amounts, if any, upon presentation of the
several Securities and coupons in respect of which moneys have been collected,
and stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of reasonable costs and expenses applicable to such
series of collection, reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith;
SECOND: In case the principal of the Securities in respect of which moneys
have been collected shall not have become due, to the payment of interest, if
any, and Additional Amounts, if any, on the Securities of such series in the
order of the maturity of the instalments of such interest and dates of payments
of such Additional Amounts, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue instalments of interest and
Additional Amounts at the same rate as the rate of interest, if any, specified
in the Securities of such series (or, with respect to Original Issue Discount
Securities, at the rate specified in the terms of such Securities for interest
on overdue principal thereof upon maturity, redemption or acceleration), such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities in respect of which moneys
have been collected shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Securities of such
series for principal (and premium, if any), interest, if any, and Additional
Amounts, if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue instalments of interest, if any, and Additional Amounts,
if any, at the same rate as the rate of interest specified in the Securities of
such series (or, with respect to original Issue Discount Securities, at the rate
specified in the terms of such Securities for interest on overdue principal
thereof upon maturity, redemption or acceleration); and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal (and
<PAGE> 42
35
premium, if any), interest, if any, and Additional Amounts, if any, without
preference or priority of principal and premium, if any, over interest, if any,
and Additional Amounts, if any, or of interest, if any, and Additional Amounts,
if any, over principal and premium, if any, or of any instalment of interest, if
any, or Additional Amounts, if any, over any other instalment of interest, if
any, or Additional Amounts, if any, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest, if any, and Additional
Amounts, if any.
SECTION 6.04. Proceedings by Securityholders. No Holder of any Security
of any series or of any coupon appertaining thereto shall have any right by
virtue or by availing of any provision of this Indenture to institute any action
or proceedings at law or in equity or in bankruptcy or otherwise, upon or under
or with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
twenty-five percent in aggregate principal amount of the Securities of such
series then outstanding or, in the case of any Event of Default described in
clause (d) or (e) of Section 6.01, twenty-five per cent in aggregate principal
amount of all the Securities at the time outstanding (voting as one class) shall
have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for sixty
days after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceedings and no direction inconsistent
with such written request shall have been given to the Trustee pursuant to
Section 6.06; it being understood and intended, and being expressly covenanted
by the taker and Holder of every Security with every other taker and Holder and
the Trustee, that no one or more Holders of Securities or coupons appertaining
to such Securities shall have any right in any manner whatever by virtue of or
by availing himself of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of Securities or coupons appertaining
to such Securities, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities and coupons. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, however, the right
of any Holder of any Security to receive payment of the principal of (and
premium, if any) and interest, if any, and Additional Amounts, if any, on such
Security or coupon, on or after the respective due dates expressed in such
Security or coupon, or to institute suit for the enforcement of any such payment
on or after such respective dates, shall not be
<PAGE> 43
36
impaired or affected without the consent of such Holder. With respect to
Original Issue Discount Securities, principal shall mean such amount as shall be
due and payable be specified in the terms of such Securities.
SECTION 6.05. Remedies Cumulative and Continuing. All powers and remedies
given by this Article Six to the Trustee or to the Holders of Securities or
coupons shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the Holders of Securities or coupons, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder of any of the Securities or coupons to exercise any right or
power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article Six or by law to the Trustee
or to the Holders of Securities or coupons may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
SECTION 6.06. Direction of Proceedings. The Holders of a majority in
aggregate principal amount of the Securities of any or all series affected
(voting as one class) at the time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee;
provided, however, that (subject to the provisions of Section 7.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, determines that the action or proceedings so directed
may not lawfully be taken or if the Trustee in good faith by its board of
directors or executive committee or a trust committee of directors or trustees
and/or responsible officers shall determine that the action or proceedings so
directed would involve the Trustee in personal liability.
SECTION 6.07. Notice of Defaults. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any series,
give notice of all defaults with respect to that series known to the Trustee (i)
if any Unregistered Securities of that series are then Outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 4.04, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of that
series are then Outstanding, to all Holders thereof who have filed their names
and addresses with the Trustee as described in Section 5.04, by mailing such
notice to such Holders at such addresses and (iii) to all Holders of then
Outstanding Registered Securities of that series, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register, unless
in each case such defaults shall have been cured before the mailing or
publication of such
<PAGE> 44
37
notice (the term "defaults" for the purpose of this Section being hereby defined
to be the events specified in Sections 6.01(a), (b), (c), (d) and (e) and any
additional events specified in the terms of any series of Securities pursuant to
Section 2.01, not including periods of grace, if any, provided for therein, and
irrespective of the giving of written notice specified in Section 6.01(c) or in
the terms of any Securities established pursuant to Section 2.01); and provided
that, except in the case of default in the payment of the principal of or
interest, if any, premium or Additional Amounts, if any, on any of the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or responsible officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of the Securities of such series.
SECTION 6.08. Undertaking to Pay 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 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 Trustee, to any suit instituted by any Securityholder of
any series, or group of such Securityholders, holding in the aggregate more than
ten percent in aggregate principal amount of all Securities (voting as one
class), or to any suit instituted by any Securityholders for the enforcement of
the payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any, on any Security on or after the due date expressed
in such Security.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities of Trustee. The Trustee, prior
to the occurrence of an Event of Default of a particular series and after the
curing of all Events of Default of such series which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to a
particular series has occurred (which has not been cured) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
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(a) prior to the occurrence of an Event of Default with respect to a
particular series and after the curing of all Events of Default with respect to
such series which may have occurred:
(1) the duties and obligations of the Trustees with respect to such
series shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a responsible officer or officers, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of Securities pursuant to Section 6.06 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.
No provision of this Indenture shall be construed as requiring the Trustee
to expend or risk its own funds or otherwise to incur any personal financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
SECTION 7.02. Reliance on Documents, Opinions, etc. Subject to the
provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, coupon or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an instrument signed in the name of the
Company by the Chairman of the Board of Directors or the President or any
Executive Vice President or any Vice President or the Treasurer and by the
Secretary or any Assistant
<PAGE> 46
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Secretary or, if the other signatory is other than the Treasurer, any Assistant
Treasurer (unless other evidence in respect thereof be herein specifically
prescribed); and a Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or any Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken
or suffered by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses, and liabilities which might be incurred
therein or thereby;
(e) 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, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, provided, however, that the Trustee shall be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it
hereunder; and
(g) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 7.03. No Responsibility for Recitals, etc. The recitals contained
herein and in the Securities, other than the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. The Trustee shall
not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 7.04. Ownership of Securities or Coupons. The Trustee or any
agent of the Company or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities or coupons with the same rights it
would have if it were not Trustee, or an agent of the Company or of the Trustee.
<PAGE> 47
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SECTION 7.05. Moneys to be Held in Trust. Subject to the provisions of
Section 12.04 hereof, all moneys received by the Trustee or any paying agent
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any paying
agent shall be under any liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to pay thereon. So long
as no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by its Chairman of the Board of Directors or its
President or any Executive Vice President or any Vice President or its Treasurer
or any Assistant Treasurer.
SECTION 7.06. Compensation and Expenses of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation, and, except as otherwise expressly
provided, the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation, expenses and disbursements of its counsel and of all
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Company under this Section to compensate the Trustee and to pay or reimburse the
Trustee for reasonable expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be secured
by a lien prior to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or coupons.
SECTION 7.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such Certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
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SECTION 7.08. Conflicting Interest of Trustee. If the Trustee has or
shall acquire any conflicting interest within the meaning of the Trust Indenture
Act of 1939, it shall, within ninety days after ascertaining that it has such
conflicting interest, either eliminate such conflicting interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act of 1939 and this Indenture.
SECTION 7.09. Eligibility of Trustee. There shall at all times be a
trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States or of any State or Territory thereof or of
the District of Columbia, or a corporation or other person permitted to act as
trustee by the Securities and Exchange Commission, which (a) is authorized under
such laws to exercise corporate trust powers, and (b) is subject to supervision
or examination by Federal, State, Territorial or District of Columbia authority
and (c) shall have at all times a combined capital and surplus of not less than
five million dollars. If such institution publishes reports of condition at
least annually, pursuant to law, or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation at any time shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation or Removal of Trustee. (a) The Trustee, or any
trustee or trustees hereafter appointed, may, upon sixty days' written notice to
the Company, at any time resign with respect to one or more or all series by
giving written notice of resignation to the Company, and (i) if any Unregistered
Securities of a series affected are then outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in London (and, if required by Section 4.04, at least once
in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities
of a series affected are then outstanding, by mailing notice of such resignation
to the Holders thereof who have filed their names and addresses with the Trustee
as described in Section 5.04 at such addresses as were so furnished to the
Trustee and (iii) by mailing notice of such resignation to the Holders of then
outstanding Registered Securities of each series affected at their addresses as
they shall appear on the Security Register. Upon receiving such notice of
resignation the Company shall promptly appoint a successor trustee with respect
to the applicable series by written instrument, in duplicate, executed by order
of the Board of Directors of the Company, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within thirty days after the mailing of such notice of resignation to the
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 6.08,
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on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur
(1) the Trustee shall fail to comply with the provisions of subsection
(a) of Section 7.08 with respect to any series of Securities after written
request therefor by the Company or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at least
six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by
any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee with respect to
such series by written instrument, in duplicate, executed by order of the Board
of Directors of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.08, any Securityholder of such series who has been a
bona fide Holder of a Security or Securities of the applicable series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee with respect to such series. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of all series (voting as one class) at the time outstanding may at
any time remove the Trustee with respect to Securities of all series and appoint
a successor trustee with respect to the Securities of all series.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
SECTION 7.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with
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respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
trustee herein; but, nevertheless, on the written request of the Company or of
the successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 7.06, execute and
deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing in order
more fully and certainly to vest in and confirm to such successor trustee all
such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
lien upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee with respect to
the Securities of one or more (but not all) series, the Company, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such trustees co-trustees of the
same trust and that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such trustee.
No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 7.08 and eligible under the provisions of
Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section, the Company shall give notice of the succession of such trustee
hereunder (a) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof, by publication of such notice at least once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York and
at least once in an Authorized Newspaper in London (and, if required by Section
4.04, at least once in an Authorized Newspaper in Luxembourg), (b) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 5.04, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Company for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register. If the
Company fails to
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mail such notice in the prescribed manner within ten days after the acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be so given at the expense of the Company.
SECTION 7.12. Successor by Merger, etc. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 7.13. Limitations on Rights of Trustee as Creditor. (a) Subject to
the provisions of subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company or of any other obligor on the Securities within three 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 of any series for which it is acting
as trustee, the Holders of any coupons appertaining to such 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 three 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 claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such
claim by any person (other than the Company) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities, or other property in
respect of claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code or
applicable State law;
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(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the beginning
of such three 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 three 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 such paragraph (b) or (c), as the case may be, to the extent of the fair
value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three 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 preexisting
claim of the Trustee as such creditor, such claim shall have the same status as
such preexisting claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Securityholders and the holders of other indenture securities in
such manner that the Trustee, the Securityholders 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 Title 11 of the
United States Code or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, the Securityholders and the holders of the other indenture securities,
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code 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
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claim. The court in which such bankruptcy, receivership, or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee, the Securityholders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee, the Securityholders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
four months' period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three months' period it shall be
subject to the provisions of this subsection (a) if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of circumstances surrounding the
making thereof is given to the Securityholders 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;
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(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances, or obligations which fall within
the classification of self-liquidating paper as defined in subsection (c)
of this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment in full
of the principal of or interest upon 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" shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act of
1939) outstanding under any other indenture (A) under which the Trustee is
also trustee, (B) which contains provisions substantially similar to the
provisions of subsection (a) of this Section, and (C) under which a default
exists at the time of the apportionment of the funds and property held in
said special account.
(3) The term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purposes of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided 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" shall mean any obligor upon the Securities.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Action by Securityholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the Holders of such
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specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by Securityholders in
person or by agent or proxy appointed in writing, or (b) by the record of the
Holders of Securities voting in favor thereof at any meeting of Securityholders
duly called and held in accordance with the provisions of Article Nine, or (c)
by a combination of such instrument or instruments and any such record of such a
meeting of Securityholders.
In determining whether the Holders of a specified percentage in aggregate
principal amount of the Securities have taken any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the principal amount of any Original Issue Discount
Security that may be counted in making such determination and that shall be
deemed to be Outstanding for such purposes shall be equal to the amount of the
principal thereof that could be declared to be due and payable upon an Event of
Default pursuant to the terms of such Original Issue Discount Security at the
time the taking of such action is evidenced to the Trustee.
SECTION 8.02. Proof of Execution by Securityholders. Subject to the
provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Securityholder or its agent or proxy shall be sufficient for any
purpose under this Indenture and conclusive in favor of the Trustee and the
Company if made in the following manner:
(a) In the case of Holders of Unregistered Securities, the fact and date of
the execution by any such person of any instrument may be proved by the
certificate of any notary public or other officer of any jurisdiction authorized
to take acknowledgments of deeds or administer oaths that the person executing
such instruments acknowledged to him the execution thereof, or by an affidavit
of a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by or on behalf of any legal entity other than
an individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the person executing the same. The fact of the holding
by any Holder of a Security of any series, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank, banker
or recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the person named in such certificate. Any such certificate may be issued in
respect of one or more Securities of one or more series specified therein. The
holding by the person named in any such certificate of any Securities of any
series specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of
such holding (1) another certificate bearing a later date issued in respect of
the same Securities shall be produced, or (2) the Security of such series
specified in such
<PAGE> 56
49
certificate shall be produced by some other person, or (3) the Security of such
series specified in such certificates shall have ceased to be outstanding.
Subject to Sections 7.01, 7.02 and 9.05, the fact and date of the execution of
any such instrument and the amount and numbers of Securities of any series held
by the person so executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee for
such series or in any other manner which the Trustee for such series may deem
sufficient.
(b) In the case of Registered Securities, the ownership of such Securities
shall be proved by the Security Register or by a certificate of the Security
Registrar.
SECTION 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any
paying agent, any transfer agent and any Security Registrar may treat the Holder
of any Unregistered Security and the Holder of any coupon as the absolute owner
of such Unregistered Security or coupon (whether or not such Unregistered
Security or coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the
Company, the Trustee, any paying agent, any transfer agent nor any Security
Registrar shall be affected by any notice to the contrary. The Company, the
Trustee, any paying agent, any transfer agent and any Security Registrar may,
subject to Section 2.04 hereof, treat the person in whose name a Registered
Security shall be registered upon the Security Register as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue) for the purpose of receiving payment thereof or on account thereof and
for all other purposes and neither the Company, the Trustee, any paying agent,
any transfer agent nor any Security Registrar shall be affected by any notice to
the contrary.
SECTION 8.04. Company-Owned Securities Disregarded; Pledged Securities. In
determining whether the Holders of the required aggregate principal amount of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Company or by any person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be disregarded and deemed not to be outstanding
for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which the Trustee knows are so
owned shall be disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding for the purposes of this Section if the
pledgee shall establish to the satisfaction of the Trustee the pledgee's right
to vote such Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. In the case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
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50
SECTION 8.05. Revocation of Consents; Future Securityholders Bound. At any
time prior to the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security the identifying number of
which is shown by the evidence to be included in the Securities the Holders of
which have consented to such action may, by filing written notice with the
Trustee at its office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Security issued in exchange or substitution therefor irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the
Securities specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all the
Securities of each series intended to be affected thereby.
SECTION 8.06. Securities in a Foreign Currency. Unless otherwise specified
in an Officers' Certificate delivered pursuant to Section 2.01 of this Indenture
with respect to a particular series of Securities, on any day when for purposes
of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of two or more series of Outstanding
Securities and, at such time, there are Outstanding Securities of at least one
such series which are denominated in a coin or currency other than that of at
least one other such series, then the principal amount of Securities of each
such series (other than any such series denominated in U.S. Dollars) which shall
be deemed to be Outstanding for the purpose of taking such action shall be that
amount of U.S. Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 8.06, Market Exchange Rate shall
mean the noon U.S. Dollar buying rate for that currency for cable transfers
quoted in The City of New York on such day as certified for customs purposes by
the Federal Reserve Bank of New York; provided, however, in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York, or in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or in the
case of ECUs, rates of exchange from one or more major banks in The City of New
York or in the country of issue of the currency in question, which for purposes
of the ECU shall be Brussels, Belgium, or such other quotations or, in the case
of ECUs, rate of exchange as the Trustee shall deem appropriate. The provisions
of this paragraph shall apply in determining the equivalent number of votes
which each Securityholder or proxy shall be entitled to pursuant to Section 9.05
in respect of Securities of a series denominated in a currency other than U.S.
Dollars.
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51
All decisions and determinations of the Trustee regarding the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company and all Holders.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meetings. A meeting of securityholders of any or
all series may be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee pursuant to
the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities
of any or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
SECTION 9.02. Call of Meetings by Trustee. The Trustee may at any time call
a meting of Holders of Securities of any or all series to take any action
specified in Section 9.01, to be held at such time and at such place as the
Trustee shall determine. Notice of every meting of the Holders of Securities of
any or all series, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given
(i) if any Unregistered Securities of a series that may be affected by the
action proposed to be taken at such meeting are then Outstanding, to all Holders
thereof, by publication at least twice in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least twice in an Authorized Newspaper
in London (and, if required by Section 4.04, at least twice in an Authorized
Newspaper in Luxembourg) prior to the date fixed for the meeting, the first
publication, in each case, to be not less than twenty nor more than one hundred
eighty days prior to the date fixed for the meeting and the last publication to
be not more than five days prior to the date fixed for the meeting, (ii) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then Outstanding, to all Holders thereof who
have filed their names and addresses with the Trustee as described in Section
5.04, by mailing such notice to such Holders at such addresses, not less than
twenty nor more than one hundred eighty days prior to the date
<PAGE> 59
52
fixed for the meeting and (iii) to all Holders of then Outstanding Registered
Securities of each series that may be affected by the action proposed to be
taken at such meeting, by mailing such notice to such Holders at their addresses
as they shall appear on the Security Register, not less than twenty nor more
than one hundred eighty days prior to the date fixed for the meeting. Failure of
any Holder or Holders to receive such notice or any defect therein shall in no
case affect the validity of any action taken at such meeting. Any meeting of
Holders of Securities of all or any series shall be valid without notice if the
Holders of all such Securities Outstanding, the Company and the Trustee are
present in person or by proxy or shall have waived notice thereof before or
after the meeting.
SECTION 9.03. Call of Meetings by Company or Securityholders. In case at
any time the Company, pursuant to a Board Resolution, or the Holders of at least
ten percent in aggregate principal amount of the Securities of any or all
series, as the case may be, then Outstanding, shall have requested the Trustee
to call a meeting of Securityholders of any or all series to take any action
authorized in Section 9.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed or published as provided in Section 9.02 the notice of such meeting
within thirty days after receipt of such request, then the Company or the
Holders of such Securities in the amount above specified may determine the time
and the place for such meeting and may call such meeting to take any action
authorized in Section 9.01, by mailing or publishing notice thereof as provided
in Section 9.02.
SECTION 9.04. Qualification for Voting. To be entitled to vote at any
meeting of Securityholders a person shall be a Holder of one or more Securities
of a series with respect to which a meeting is being held or a person appointed
by an instrument in writing as proxy by such a Holder. The only persons who
shall be entitled to be present or to speak at any meeting of the
Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 9.05. Regulations. Nothwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a
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53
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Holders of a majority in principal
amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting not to be Outstanding.
The chairman of the meeting shall have no right to vote except as a
securityholder or proxy. Any meeting of Securityholders duly called pursuant to
the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and
the meeting may be held as so adjourned without further notice.
SECTION 9.06. Voting. The vote upon any resolution submitted to any meeting
of Securityholders shall be by written ballot on which shall be subscribed the
signatures of the Securityholders or proxies and on which shall be inscribed the
identifying number or numbers or to which shall be attached a list of
identifying numbers of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section 9.02.
The record shall be signed and verified by the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of
Securityholders. The Company, when authorized by Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
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54
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by any successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article Eleven
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the Holders of Securities of any or
all series, or the coupons appertaining to such Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions, conditions or provisions a default or an
Event of Default with respect to any or all series permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth, with such period of grace, if any, and subject to such conditions as such
supplemental indenture may provide;
(c) to add or change any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the issuance of Securities of any
series in bearer form, registrable or not registrable as to principal, and with
or without interest coupons, and to provide for exchangeability of such
Securities with Securities issued hereunder in fully registered form and to make
all appropriate changes for such purpose, and to add or change any of the
provisions of this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of uncertificated Securities of any series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture or in the terms of any series
of Securities established by action taken pursuant to a Board Resolution which
provision may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture or in the terms of any series of
Securities established by action taken pursuant to a Board Resolution; to
convey, transfer, assign, mortgage or pledge any property to or with the
Trustee; or to make such other provisions in regard to matters or questions
arising under this Indenture as shall not adversely affect the interests of the
Holders of any series of Securities or any coupons appertaining to such
Securities in any material respect;
(e) to evidence and provide for the acceptance and appointment hereunder by
a successor trustee with respect to the Securities of one or more series and to
add or change any provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to Section 7.11; and
(f) to establish the form or terms of Securities of any series as permitted
by Sections 2.03 and 2.01.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not
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55
be obligated to enter into any such supplemental indenture which adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the Holders of
any of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 10.02.
SECTION 10.02. Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in Section 8.01) of the
Holders of not less than sixty-six and two-thirds percent in the aggregate
principal amount of the Securities of all series at the time Outstanding
affected by such supplemental indenture (voting as one class), the Company, when
authorized by a Board Resolution, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the Securities of each such
series or any coupons appertaining to such Securities; provided, however, that
no such supplemental indenture shall (i) extend the fixed maturity of any
Securities, or reduce the principal amount thereof or premium, if any, or reduce
the rate or extend the time of payment of any interest or Additional Amounts
thereon or reduce the amount due and payable upon acceleration of the maturity
thereof or the amount provable in bankruptcy, or make the principal of, or
interest, premium or Additional Amounts on any Security payable in any coin or
currency other than that provided in such Security, (ii) 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
therefor), or (iii) reduce the aforesaid percentage of Securities, the consent
of the Holders of which is required for any such supplemental indenture, or the
percentage required for the consent of the Holders pursuant to Section 6.01 to
waive defaults, without the consent of the Holder of each Security so affected.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
<PAGE> 63
56
Promptly after the execution and delivery by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice of such supplemental indenture (i) to the Holders of
then Outstanding Registered Securities of each series affected thereby, by
mailing a notice thereof by first-class mail to such Holders at their addresses
as they shall appear on the Security Register, (ii) if any Unregistered
Securities of a series affected thereby are then Outstanding, to the Holders
thereof who have filed their names and addresses with the Trustee as described
in Section 5.04, by mailing a notice thereof by first-class mail to such Holders
at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
4.04, at least once in an Authorized Newspaper in Luxembourg), and in each case
such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Company to mail or publish such notice, or any
defect therein, shall not, however in any way impair or affect the validity of
any such supplemental indenture.
SECTION 10.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Ten shall comply with the Trust Indenture Act of 1939, as then in
effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Ten, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Holders of Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the provisions of this Article Ten.
SECTION 10.04. Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provision of this Article Ten may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. New Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered, without
charge to the Securityholders, in exchange for the Securities of such series
then Outstanding.
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, etc., on Certain Terms. The
Company covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
person, firm or corporation, unless (i) either the Company shall be the
continuing corporation, or the successor corporation (if other than the Company)
shall be a corporation organized and existing under the laws of the United
States of America or a state thereof and such corporation shall expressly assume
the due and punctual payment of the principal of (and premium, if any),
interest, if any, and Additional Amounts, if any, on all the Securities and any
coupons, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation, and (ii) the Company
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
SECTION 11.02. Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of TRINOVA
Corporation, any or all of the Securities, and any coupons appertaining thereto,
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities or coupons which previously shall have been signed and delivered
by the officers of the Company to the Trustee for authentication, and any
Securities or coupons which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All of the Securities,
and any coupons appertaining thereto, so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities or coupons
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities, and any coupons appertaining thereto, had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities and
coupons thereafter to be issued as may be appropriate.
<PAGE> 65
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SECTION 11.03. Opinion of Counsel to be Given Trustee. The Trustee,
subject to the provisions of Sections 7.01 and 7.02, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture. If at any time (a) the Company
shall have delivered to the Trustee for cancellation all Securities of any
series theretofore authenticated (other than any Securities of such series and
coupons appertaining thereto which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.06), or (b) all
such Securities of such series and any coupons appertaining to such Securities
not theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust funds the entire
amount (other than moneys repaid by the Trustee or any paying agent to the
Company in accordance with Section 12.04) sufficient to pay at maturity or upon
redemption all Securities of such series and all coupons appertaining to such
Securities not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any), interest, if any, and Additional Amounts, if
any, due or to become due to such date of maturity or date fixed for redemption,
as the case may be, and if in either case the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such
series, then this Indenture shall cease to be of further effect with respect to
the Securities of such series or any coupons appertaining to such Securities,
and the Trustee, on demand of and at the cost and expense of the Company and
subject to Section 14.04, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to the Securities of
such series and all coupons appertaining to such Securities. The Company agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee in connection with this Indenture or the
Securities of such series or any coupons appertaining to such Securities.
SECTION 12.02. Satisfaction, Discharge and Defeasance of Securities of any
Series. If pursuant to Section 2.01 provision is made for the defeasance of
Securities of a series, then the provisions of this Section 12.02 shall be
applicable except as otherwise specified as contemplated by Section 2.01 for
Securities of such series. At the Company's option, either (a) the Company shall
be deemed to have paid and discharged the entire indebtedness on all the
Outstanding Securities of any such series and the Trustee, at the expense of the
Company, shall execute proper instruments
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acknowledging satisfaction and discharge of such indebtedness, or (b) the
Company shall cease to be under any obligation to comply with any term,
provision, condition or covenant specified as contemplated by Section 2.01, when
(1) either
(A) with respect to all Outstanding Securities of such series,
(i) the Company 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 of all
Outstanding Securities of such series for principal (and premium,
if any), interest, if any, and Additional Amounts, if any, to the
stated maturity or any redemption date as contemplated by the last
paragraph of this Section 12.02, as the case may be; or
(ii) the Company has deposited or caused to be deposited with
the Trustee as obligations in trust for the purpose such amount of
direct noncallable obligations of, or noncallable obligations the
payment of principal of and interest on which is fully guaranteed
by, the United States of America, or to the payment of which
obligations or guarantees the full faith and credit of the United
States of America is pledged, maturing as to principal and
interest in such amounts and at such times as will, together with
the income to accrue thereon (but without reinvesting any proceeds
thereof), be sufficient to pay and discharge the entire
indebtedness on all Outstanding Securities of such series for
principal (and premium, if any), interest, if any, and Additional
Amounts, if any, to the stated maturity or any redemption date as
contemplated by the last paragraph of this Section 12.02, as the
case may be; or
(B) the Company has properly fulfilled such other terms and
conditions to the satisfaction and discharge as are specified, as
contemplated by Section 2.01, as applicable to the Securities of such
series; and
(2) the Company has paid or caused to be paid all other sums payable
with respect to the Outstanding Securities of such series; 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 the
entire indebtedness on all Outstanding Securities of any such series have
been complied with.
Any deposits with the Trustee referred to in Section 12.02(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their stated maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement
<PAGE> 67
60
or otherwise, the applicable escrow trust agreement shall provide therefor and
the Company shall make such arrangements 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.
SECTION 12.03. Deposited Moneys to be Held in Trust by Trustee. All
moneys deposited with the Trustee pursuant to Section 12.01 or 12.02 shall be
held in trust and applied by it to the payment, either directly or through any
paying agent (including the Company acting as its own paying agent), to the
Holders of the particular Securities and of any coupons appertaining to such
Securities for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal (and premium, if any), interest, if any, and Additional Amounts, if
any.
SECTION 12.04. Paying Agent to Repay Moneys Held. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any
series all moneys with respect to such Securities then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be
repaid to it or paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys.
SECTION 12.05. Return of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee or any paying agent for the payment of the principal of (and
premium, if any), interest, if any, and Additional Amounts, if any, on any
Security and not applied but remaining unclaimed for three years after the date
upon which such principal (and premium, if any), interest, if any, and
Additional Amounts, if any, shall have become due and payable, shall be repaid
to the Company by the Trustee or such paying agent on demand, and the Holder of
such Security or any coupon appertaining to such Security shall thereafter look
only to the Company for any payment which such Holder may be entitled to collect
and all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment in respect of Unregistered Securities of any
series, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and once
in an Authorized Newspaper in London (and, if required by Section 4.04, once in
an Authorized Newspaper in Luxembourg), notice that such moneys remain and that,
after a date specified therein, which shall not be less than thirty days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
<PAGE> 68
61
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Securities Solely Corporate Obligations. No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any covenant or agreement contained in this Indenture, or in
any security, or because of any indebtedness evidenced thereby, shall be had
against any past, present or future incorporator, stockholder, officer or
director, as such, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders
thereof and as part of the consideration for the issue of the Securities and
coupons.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Benefits of Indenture Restricted to Parties and
Securityholders. Nothing in this Indenture or in the Securities or coupons,
expressed or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities or coupons, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities or coupons.
SECTION 14.02. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 14.03. Addresses for Notices, etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Company may be given
or served by being deposited postage prepaid first class mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee), as follows: TRINOVA Corporation, 3000 Strayer, Maumee, Ohio 43537,
Attention: Secretary. Any notice, direction, request or demand by the Company or
any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at its
Corporate Trust Department, 611
<PAGE> 69
62
Woodward Avenue, Detroit, Michigan 48226, or at any other address previously
furnished in writing to the Company by the Trustee.
SECTION 14.04. Evidence of Compliance with Conditions Precedent. Upon any
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 14.05. Legal Holidays. In any case where the date of maturity of
any interest, premium or Additional Amounts on or principal of the Securities or
the date fixed for redemption of any Securities shall not be a Business Day in a
city where payment thereof is to be made, then payment of any interest, premium
or Additional Amounts on, or principal of, such Securities need not be made on
such date in such city but may be made on the next succeeding Business Day with
the same force and effect as if made on the date of maturity or the date fixed
for redemption, and no interest shall accrue for the period after such date.
SECTION 14.06. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required by the Trust Indenture
Act of 1939, as amended, such required provision shall control.
SECTION 14.07. Execution in Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
<PAGE> 70
63
SECTION 14.08. Ohio Contract. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of Ohio, and for all
purposes shall be governed by and construed in accordance with the laws of said
State.
NBD Bank, the party of the second part, hereby accepts the trusts in this
Indenture declared and provided, upon the term and conditions hereinabove set
forth.
IN WITNESS WHEREOF, TRINOVA CORPORATION, the party of the first part, has
caused this Indenture to be signed and acknowledged by its Chairman of the Board
or its President or one of its Executive Vice Presidents or one of its Vice
Presidents or its Treasurer, and its Corporate seal to be affixed hereunto, and
the same to be attested by its Secretary or an Assistant Secretary; and NBD
Bank, the party of the second part, has caused this Indenture to be signed and
acknowledged by one of its Vice Presidents or Senior Trust Officers, and its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or an Assistant Secretary or a Trust Officer, all as of the day and
year first above written.
TRINOVA CORPORATION
[Corporate Seal]
By:
-------------------------------
Attest:
- ---------------------------------------------
NBD BANK
[Corporate Seal]
By:
------------------------------
Attest:
- ---------------------------------------------
<PAGE> 71
64
STATE OF OHIO |
| SS.:
COUNTY OF |
On the day of , 1996, before me personally
came , to me known, who, being by me duly sworn, did depose
and say that he resides at , that he is the
of TRINOVA Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said Corporation; that the seal affixed to said instrument 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.
[SEAL]
--------------------------------------
Notary Public
Notary Public, State of Ohio
My Commission Expires
STATE OF MICHIGAN |
| SS.:
COUNTY OF |
On the day of , 1996, before me personally came
, to me known, who, being by me duly sworn, did depose and
say that he resides at , that he is a
of NBD Bank, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said Corporation;
that the seal affixed to said instrument 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.
[SEAL]
Notary Public
<PAGE> 1
EXHIBIT (5)
[LETTERHEAD OF JONES, DAY, REAVIS & POGUE]
March 14, 1996
TRINOVA Corporation
3000 Strayer
Maumee, Ohio 43537
Re: $175,000,000 Aggregate Principal
Amount of Debt Securities
-------------------------
Ladies and Gentlemen:
We are acting as counsel for TRINOVA Corporation, an Ohio
corporation (the "Company"), in connection with the creation and the
authorization of the issuance and sale of up to $175,000,000 aggregate
principal amount of debt securities (the "Securities") to be issued pursuant to
an Indenture (the "Indenture") to be entered into between the Company and NBD
Bank, as Trustee (the "Trustee").
We have examined such documents, records and matters of law as
we have deemed necessary for purposes of this opinion, and based thereupon we
are of the opinion that:
(1) The Indenture will constitute a valid and
binding instrument of the Company.
(2) The Securities will be duly authorized, valid
and binding obligations of the Company and will be entitled to
the benefits of the Indenture.
This opinion is subject to the satisfaction of the following
conditions:
(a) The taking of appropriate definitive action
by the Board of Directors, a duly constituted committee of the
Board or an officer or officers authorized by the Board to
designate the type, terms and amount of Securities to be
issued and sold in conformity with the Indenture;
(b) The due execution and delivery by the Company
and the Trustee of the Indenture authorized by the Board and
included as Exhibit (4) to the Registration Statement on Form
S-3 (the "Registration Statement")
<PAGE> 2
JONES, DAY, REAVIS & POGUE
TRINOVA Corporation
March 14, 1996
Page 2
filed by the Company to effect registration of the Securities
under the Securities Act of 1933; and
(c) The due execution, authentication and
delivery of the Securities in accordance with the terms of the
Indenture and sale of and receipt of payment for the
Securities by the Company in accordance with such
authorization of the Board.
We hereby consent to the filing of this opinion as Exhibit (5)
to the Registration Statement filed by the Company to effect registration of
the Securities under the Securities Act of 1933 and to the reference to us
under the caption "Legal Matters" in the Prospectus constituting a part of such
Registration Statement.
Very truly yours,
Jones, Day, Reavis & Pogue
<PAGE> 1
EXHIBIT (12)
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
-----------------------------------------------------------
1995 1994 1993 1992 1991
-------- -------- ------- ------- ---------
<S> <C> <C> <C> <C> <C>
Income (loss) before income taxes and
cumulative effect of accounting
change............................. $128,196 $101,255 $17,111 $24,042 $(195,279)
Undistributed (income) loss of
unconsolidated affiliates.......... (3,704) 1,213 1 (1,931) (58)
Fixed charges........................ 31,762 30,249 33,370 34,623 35,064
-------- -------- ------- ------- ---------
Income (loss) before cumulative
effect of accounting change for
computation purposes............... $156,254 $132,717 $50,482 $56,734 $(160,273)
======== ======== ======= ======= =========
Fixed Charges:
Interest expense, including
interest related to corporate
owned life insurance............ $ 24,477 $ 22,582 $25,516 $26,313 $ 26,453
Portion of rent expense
representing interest........... 6,903 7,303 7,490 7,987 8,370
Amortization of debt expense and
debt discount................... 382 364 364 323 241
-------- -------- ------- ------- ---------
Total fixed charges.................. $ 31,762 $ 30,249 $33,370 $34,623 $ 35,064
======== ======== ======= ======= =========
Ratio of earnings to fixed charges... 4.9x 4.4x 1.5x 1.6x --
======== ======== ======= ======= =========
</TABLE>
<PAGE> 1
EXHIBIT (23-2)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement on Form S-3 and in Post Effective Amendment No. 2 to the
Registration Statement (Form S-3 No. 33-9127) and related Prospectus of TRINOVA
Corporation and to the incorporation by reference therein of our reports dated
January 24, 1996, with respect to the financial statements of TRINOVA
Corporation incorporated by reference in its Annual Report on Form 10-K for the
year ended December 31, 1995 and the related financial statement schedule
included therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Toledo, Ohio
March 14, 1996
<PAGE> 1
EXHIBIT (23-3)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement on Form S-3 and in Post Effective Amendment No. 2 to the
Registration Statement (Form S-3 No. 33-9127) and related Prospectus of TRINOVA
Corporation and to the incorporation by reference therein of our report dated
February 19, 1996, with respect to the combined statement of revenues and
direct operating expenses of the Electronic Systems Division of Cincinnati
Milacron Inc. for the year ended December 30, 1995 included in TRINOVA
Corporation's Current Report on Form 8-K filed January 16, 1996 as amended on
Form 8 K/A filed March 14, 1996, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Cincinnati, Ohio
March 14, 1996
<PAGE> 1
EXHIBIT (24)
TRINOVA CORPORATION
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
directors and officers of TRINOVA Corporation, an Ohio corporation (the
"Company"), hereby constitutes and appoints Darryl F. Allen, William R. Ammann,
James E. Kline and David M. Risley, and each of them, with full power of
substitution and resubstitution, as attorneys-in-fact or attorney-in-fact of
each of the undersigned, for each of the undersigned and in the name, place and
stead of each of the undersigned, to sign and file with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933 one or
more Registration Statement(s) on Form S-3 relating to the registration for
sale of one or more series of up to $250,000,000 aggregate principal amount of
debt securities (the "Securities") of the Company, with any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements or any additional registration statement filed
pursuant to Rule 462 promulgated under the Securities Act of 1933, and to sign
and file any and all applications or other documents to be filed with the
Commission and any and all documents required to be filed with any state
securities regulating board or commission pertaining to such Securities
registered pursuant to the Registration Statement(s) on Form S-3, with any and
all amendments, supplements and exhibits thereto, with full power and authority
to do and perform any and all acts and things whatsoever required, necessary or
desirable to be done in the premises, hereby ratifying and approving the act of
said attorneys and any of them and any such substitute.
EXECUTED as of March 5, 1996.
/s/Darryl F. Allen /s/David M. Risley
- -------------------------------- --------------------------------
Darryl F. Allen David M. Risley
Chairman of the Board, President Vice President - Finance
and Chief Executive Officer and Chief Financial Officer
/s/Gregory R. Papp /s/Purdy Crawford
- -------------------------------- --------------------------------
Gregory R. Papp Purdy Crawford
Corporate Controller Director
/s/Joseph C. Farrell /s/David R. Goode
- -------------------------------- --------------------------------
Joseph C. Farrell David R. Goode
Director Director
/s/Paul A. Ormond /s/John P. Reilly
- -------------------------------- --------------------------------
Paul A. Ormond John P. Reilly
Director Director
/s/Robert H. Spilman /s/William R. Timken, Jr.
- -------------------------------- --------------------------------
Robert H. Spilman William R. Timken, Jr.
Director Director
<PAGE> 2
EXHIBIT (24)
TRINOVA CORPORATION
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that TRINOVA Corporation, an
Ohio corporation (the "Company"), hereby constitutes and appoints Darryl F.
Allen, William R. Ammann, James E. Kline and David M. Risley, and each of them,
with full power of substitution and resubstitution, as attorneys-in-fact or
attorney-in-fact of the Company, for the Company and in the name, place and
stead of the Company, to sign and file with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933 one or more
Registration Statement(s) on Form S-3 relating to the registration for sale of
one or more series of up to $250,000,000 aggregate principal amount of debt
securities (the "Securities") of the Company, with any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements or any additional registration statement filed
pursuant to Rule 462 promulgated under the Securities Act of 1933, and to sign
and file any and all applications or other documents to be filed with the
Commission and any and all documents required to be filed with any state
securities regulating board or commission pertaining to such Securities
registered pursuant to the Registration Statement(s) on Form S-3, with any and
all amendments, supplements and exhibits thereto, with full power and authority
to do and perform any and all acts and things whatsoever required, necessary or
desirable to be done in the premises, hereby ratifying and approving the act of
said attorneys and any of them and any such substitute.
EXECUTED as of March 13, 1996.
TRINOVA CORPORATION
/s/ Darryl F. Allen
-------------------------------------
Darryl F. Allen
Chairman of the Board, President
and Chief Executive Officer
<PAGE> 1
EXHIBIT (25)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A CORPORATION DESIGNATED
TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ___
____________________________
NBD BANK
(Exact name of Trustee as specified in its charter)
<TABLE>
<S> <C> <C>
611 Woodward Avenue
Detroit, Michigan 48226 38-0864715
(Address of principal executive offices) (Zip Code) (I.R.S. Employer Identification No.)
</TABLE>
NBD BANK
611 WOODWARD AVENUE
DETROIT, MICHIGAN 48226
CORPORATE TRUST DEPARTMENT
ATTN: KAREN D. O'DONOGHUE (313) 225-3185
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
TRINOVA CORPORATION
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Ohio 34-4288310
(State or jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
3000 Strayer Road
Maumee, Ohio 43537-0050
(Address of principal executive offices)
(Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
1. GENERAL INFORMATION
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
State of Michigan Department of Commerce Financial Institutions
Bureau, Lansing, Michigan
Federal Reserve Bank of Chicago, Chicago, Illinois
Federal Deposit Insurance Corporation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR.
The obligor is not an affiliate of the Trustee.
3. VOTING SECURITIES OF THE TRUSTEE.
The following information is furnished as to each class of voting
securities of the Trustee:
AS OF MARCH 1, 1996
-------------------------------------------------------------------
COLUMN A COLUMN B
-------------------------------------------------------------------
TITLE OF CLASS AMOUNT OUTSTANDING
-------------------------------------------------------------------
Common Stock, par value $12.50 per share 8,948,648 shares
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
NBD Bank is Trustee under an Indenture, dated January 28, 1988,
between Trinova Corporation ("Trinova") and NBD Bank formerly known as
NBD Bank, N.A. The Trustee is not aware of any default under this
Indenture.
NBD Bank is Trustee under a First Supplemental Indenture, dated May 4,
1992, between Trinova and NBD Bank formerly known as NBD Bank, N.A.
The Trustee is not aware of any default under this Indenture.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
Neither the Trustee nor any of the directors nor executive officers of
the Trustee is a director, officer, partner, employee, appointee or
representative of the underwriter for the obligor.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Voting securities of the Trustee owned by the obligor and its
directors, partners and executive officers, taken as a group, do
not exceed one percent of the outstanding voting securities of the
Trustee.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Voting securities of the Trustee owned by any underwriter and its
directors, partners and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the
Trustee.
<PAGE> 3
8. SECURITIES OF OBLIGOR OWNED OR HELD BY THE TRUSTEE.
The amount of securities of the obligor which the Trustee owns
beneficially or holds as collateral security for obligations in
default does not exceed one percent of the outstanding securities of
the obligor.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
The Trustee does not own beneficially or hold as collateral security
for obligations in default any securities of an underwriter for the
obligor.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security
for obligations in default voting securities of a person who, to the
knowledge of the Trustee (1) owns 10% or more of the voting securities
of the obligor, or (2) is an affiliate, other than a subsidiary, of
the obligor.
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PER CENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security
for obligations in default any securities of a person who, to the
knowledge of the Trustee, owns 50 percent or more of the voting
securities of the obligor.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE AS OF FEBRUARY 28, 1996.
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------
COLUMN A COLUMN B COLUMN C
-------------------------------------------------------------------------------
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
-------------------------------------------------------------------------------
<S> <C> <C>
$25 million revolving credit facility $ 0 August 31, 1999
</TABLE>
13. DEFAULTS BY THE OBLIGOR.
Not applicable.
14. AFFILIATIONS WITH THE UNDERWRITERS.
No underwriter is an affiliate of the Trustee.
15. FOREIGN TRUSTEE.
Not applicable.
<PAGE> 4
16. LIST OF EXHIBITS.
(1) Articles of Association of the Trustee. Attached hereto as
Exhibit A.
(2) Certificate of Authority of the Trustee to commence business.
See Exhibit A.
(3) Authorization of the Trustee to exercise corporate trust
powers. Attached hereto as Exhibit B.
(4) By-Laws of the Trustee. Attached hereto as Exhibit C.
(5) Not Applicable.
(6) Consent by the Trustee required by Section 321 (b) of the
Trust Indenture Act of 1939. Incorporated by reference to
Exhibit (6) filed with Amendment No. 1 to Form T-1 Statement,
Registration No. 22-4501.
(7) Report of condition of Trustee. Attached hereto as Exhibit D.
(8) Not applicable.
(9) Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the Trustee, NBD Bank, a Michigan banking corporation, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Detroit, State of
Michigan on the 1st day of March, 1996.
NBD BANK
(Trustee)
By: /s/ Karen D. O'Donoghue
---------------------------
Karen D. O'Donoghue
Vice President
<PAGE> 5
EXHIBIT A
---------
NBD BANK
DETROIT, MICHIGAN
Charter No. 970
ARTICLES OF INCORPORATION
EFFECTIVE JANUARY 1, 1995
FIRST.
The name of this Bank shall be NBD Bank.
SECOND.
The place where the principal office of this Bank is located is in the City of
Detroit, Wayne County, State of Michigan.
The Board of Directors shall have the power to change the location of the main
office anywhere within the City of Detroit without the approval of the
shareholders and shall have the power to establish or change the location of
any branch or branches of this Bank to any other location without the approval
of the shareholders.
THIRD.
The purpose of this Bank is to carry on the business of banking pursuant to the
Michigan Banking Code of 1969, as amended.
FOURTH.
The authorized amount of the capital stock of this Bank shall be 10,000,000
shares of common stock of the par value of $12.50 each. The authorized amount
of the capital stock of this Bank may be increased or decreased from time to
time in accordance with provisions of the laws of the State of Michigan.
FIFTH.
The period for which this Bank is organized is perpetual.
SIXTH.
A Director of the Bank shall not be personally liable to the Bank or its
shareholders for monetary damages for a breach of fiduciary duty as a Director,
except for liability: (a) for any breach of the Director's duty of loyalty to
the Bank or its shareholders; (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (c)
resulting from a violation of Section 43 of the Michigan Banking Code, as
amended; (d) for any transaction from which the Director derived an improper
personal benefit; or (e) for any act or omission occurring prior to the date
upon which this Article is duly adopted and filed as required by law. If,
following approval of this Article by the shareholders, the Michigan Banking
Code is amended to authorize corporate action further eliminating or limiting
the personal liability of
<PAGE> 6
Directors, then the liability of a Director of the Bank shall be eliminated or
limited to the fullest extent permitted by the Michigan Banking Code, as
amended. Any repeal, modification or adoption of any provisions in these
Articles of Incorporation inconsistent with this Article shall not adversely
affect any right or protection of a Director of the Bank existing at the time
of such repeal, modification or adoption.
SEVENTH.
These Articles of Incorporation may be changed or amended at any time by a vote
of the shareholders owning a majority of the stock of this Bank in any manner
not inconsistent with the provisions of law.
<PAGE> 7
EXHIBIT B
---------
STATE OF MICHIGAN
DEPARTMENT OF COMMERCE
FINANCIAL INSTITUTIONS BUREAU
[STATE EMBLEM]
OFFICE OF THE COMMISSIONER
I, Patrick M. McQueen, Commissioner, do hereby certify, that
NBD BANK
in the City of Detroit, County of Wayne, State of Michigan, a financial
institution existing and operating under the provisions of the banking code of
1969, having satisfactorily complied with all statutory requirements obtaining
in such matter, is hereby authorized to exercise FULL TRUST POWERS as provided
in sections 181 through 186 of the banking code of 1969, effective 11:59 p.m.
on December 31, 1994.
[STATE SEAL] SIGNED AND SEALED this 21st day of DECEMBER 1994,
at Lansing, Michigan.
/s/ Patrick M. McQueen
----------------------
Patrick M. McQueen
Commissioner
<PAGE> 8
EXHIBIT C
---------
NBD BANK
DETROIT, MICHIGAN
________________________________________________________________________________
BYLAWS
EFFECTIVE JANUARY 1, 1995
________________________________________________________________________________
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. ANNUAL MEETINGS. The regular Annual Meeting of the stockholders of
this Bank for the election of directors and for the transaction of any other
business as may properly come before the meeting shall be held on the third
Monday in May of each year or at such other date as from time to time may be
designated by the Board of Directors. If the election of directors shall not
be held on the day designated for an annual meeting, or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a
meeting of the stockholders as soon thereafter as convenient. Nominations for
election to the Board of Directors may be made by the Board of Directors or by
any stockholders entitled to vote for the election of directors.
Section 2. SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the stockholders may be called for any purpose at
any time by the Board of Directors or by the holders of at least ten per cent
(10%) of the then outstanding shares of stock.
Section 3. PLACE OF MEETINGS. Annual meetings or special meetings of the
stockholders shall be held at the main office of the Bank or at such other
place within or without the State of Michigan as is established by the Board of
Directors.
Section 4. PROXIES. All proxies secured for any annual or special meeting of
stockholders shall be dated and filed by the Secretary with the records of the
meeting.
Section 5. NOTICE OF MEETINGS. Written notice stating the place, day and hour
of the meeting and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten days, before
the date of the meeting either personally or by mail, by or at the direction of
the President, or the Secretary, or the officer or persons calling the meeting
to each stockholder of record entitled to vote at such meeting. If mailed,
such notices shall be deemed to be delivered when deposited in the United
States mail, addressed to the stockholder at his address as it appears on the
records of the Bank with postage thereon prepaid. Such notice may be waived in
writing.
<PAGE> 9
Section 6. FIXING THE RECORD DATE. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders,
annual or special, or entitled to receive payment of any dividend, or in order
to make a determination of stockholders for any other proper purpose, the Board
of Directors shall fix in advance a record date and hour for any such
determination of stockholders, such date in any case to be not more than fifty
(50) days and, in case of a meeting of stockholders, not less than ten (10)
days prior to the date on which the particular action, requiring such
determination of stockholders, is to be taken. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
Section 7. STOCKHOLDERS' ACTION WITHOUT A MEETING. Unless otherwise
restricted in the Articles of Incorporation or these Bylaws, any action which
may be taken at the annual or any special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by all stockholders
entitled to vote with respect to the subject matter thereof.
ARTICLE II
DIRECTORS
Section 1. SIZE AND VACANCIES. The Board of Directors shall consist of such
number of persons, not less than five nor more than twenty-five, as from time
to time shall be determined by a majority of the votes to which all
stockholders are at the time entitled or by resolution adopted by the
affirmative vote of a majority of the Board of Directors. Any vacancies in the
Board of Directors may be filled by action of a majority of the remaining
Directors between meetings of stockholders. Subject to the limitation as to
the number of Directors, the stockholders may elect not to exceed two less than
the full Board, and the unfilled directorships shall be considered as vacancies
and may be filled thereafter by the Board of Directors.
Section 2. POWERS. The Board of Directors, a majority of whom shall be a
quorum to transact business, shall have power to manage and administer the
business and affairs of the Bank and to prescribe Bylaws for the regulation of
the business of the Bank and the conduct of its affairs not inconsistent with
law, the Articles of Incorporation and these Bylaws. Except as expressly
limited by law, all corporate powers of the Bank shall be vested in and may be
exercised by the Board of Directors.
Section 3. OFFICERS AND EMPLOYEES. The Board of Directors shall have power to
elect or appoint such officers and employees as may be required to transact the
business of the Bank, to define their duties, to require bonds from them and to
fix the penalty thereof, and to continue them in office or dismiss them.
Section 4. MEETINGS. The regular meetings of the Board of Directors shall be
held on such date and at such time each month, within or without the State of
Michigan as shall from time to time be determined by the Board of Directors by
resolution, except that in the month in which the regular annual meeting of the
stockholders is held, the regular meeting of the Board of Directors
<PAGE> 10
shall be held following and on the same day as the regular meeting of the
stockholders. When any regular meeting of the Board of Directors falls upon a
holiday, the meeting shall be held on such other day as the Board of
Directors may previously designate. Special meetings of the Board of Directors
may be called at any time by the Secretary or by any officer of higher rank
than Vice President, or any three Directors. Notice of each special meeting
shall be given personally or by duly mailing, telephoning, or telegraphing the
same, at least twenty-four hours before the meeting. Any or all Directors may
waive notice of any meeting either before or after the meeting.
Section 5. PARTICIPATION IN MEETINGS BY TELEPHONE. Unless otherwise
restricted by the Articles of Incorporation or these Bylaws, members of the
Board of Directors or any committee designated by the Board may participate in
a meeting of the Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 6. DIRECTORS' ACTION WITHOUT A MEETING. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if a written consent thereto
is signed by all members of the Board or of such committee as the case may be,
and such written consent is filed with the minutes of proceedings of the Board
or committee.
ARTICLE III
COMMITTEES OF THE BOARD
Section 1. EXECUTIVE COMMITTEE. There shall be a committee composed of not
less than four (4) members to be known as the Executive Committee which shall
consist of all the officer-directors of the Bank and two (2) other directors
appointed as shall be provided by the Board of Directors. Provision shall be
made by the Board of Directors for the appointment of alternates to act for
members in the event of their absence or disability.
1.1 PRESIDING OFFICER. The Chairman of the Board shall act as presiding
officer at any meeting of the Executive Committee. In the event of the absence
or disability of the Chairman of the Board, the President shall act as
presiding officer. In the event of the absence or disability of the Chairman
of the Board and President, another officer-director, if present, shall act as
presiding officer. If no officer-director member is present, an Executive
Vice President of the Bank may serve as the presiding officer or the other
members present at the meeting shall elect one of their members as presiding
officer.
1.2 QUORUM. Any two (2) persons, each of whom is a member or alternate
member of the Executive Committee, of whom not less than one (1) shall be
non-officer directors, shall constitute a quorum for the transaction of
business at any meeting of the Executive Committee.
1.3 DUTIES. The Executive Committee shall function from day to day or
such other short intervals as shall be found requisite and expedient in the
carrying on of the business and affairs
<PAGE> 11
of the Bank, and between meetings of the Board of Directors, said Committee,
within the scope of the jurisdiction and functions assigned by the Board of
Directors to such Committee, shallhave and may exercise, so far as may be
permitted by law, all power and authority of the Board of Directors (including
the right to authorize the seal of the Bank to be affixed to all instruments on
which the same may be required or appropriate) and shall have power, but not by
way of limitation of its general powers, to discount and purchase bills, notes,
and other evidences of debt, and to buy and sell bills of exchange. A record
of the meetings of the Committee shall be kept, which shall be accessible to
inspection by the Directors at all times, and the Committee shall, at each
regular meeting of the Board of Directors and at such other times as the Board
of Directors may request, submit in writing a full report of its actions. The
Board of Directors shall approve or disapprove the report of the Executive
Committee, such action to be recorded in the minutes of the meeting; provided,
however, that no rights of third parties shall be affected by any action of the
Board of Directors, if such rights have attached by virtue of action of the
Executive Committee within the scope of the jurisdiction and functions assigned
by the Board of Directors to said Committee.
Section 2. AUDIT COMMITTEE. There shall be appointed annually by the Board of
Directors an Audit Committee composed of not less than three (3) Directors none
of whom shall be officers of the Bank.
2.1 DUTIES. The Audit Committee shall:
(i) Cause to be made by the Auditing Department of the Bank a
suitable examination of the financial records and operations of the Bank
through a program of continuous internal audits. The Committee may employ
independent certified public accounting firms of recognized standing to make
such additional examinations and audits as it may deem advisable. The
examinations caused to be made by the Committee shall meet any examination
requirements prescribed from time to time by the Michigan Financial
Institutions Bureau or other regulatory authorities having jurisdiction and may
be made in conjunction with examinations of the Michigan Financial Institutions
Bureau.
(ii) Report to the Board of Directors at least once in each
calendar year the results of the examinations made and such conclusions and
recommendations as the Committee deems appropriate.
Section 3. OTHER COMMITTEES. The Board of Directors may create and appoint
such other committees as it may, at any time or from time to time, find
necessary or desirable to facilitate and expedite the management and
administration of the affairs of the Bank. The Board of Directors shall have
power to specify the number of members of any such other committee, to
designate the powers and duties of any such other committee, and to provide for
the tenure in office of its members, its method of organization, and its
procedure for the transaction of business.
<PAGE> 12
ARTICLE IV
OFFICERS
Section 1. APPOINTMENT AND TITLES. The officers of this Bank shall include a
Chairman of the Board and a President and may include one or more Vice Chairman
of the Board, each of whom shall be a member of the Board of Directors, and
shall further include one or more Vice Presidents, a Secretary, one or more
Assistant Secretaries, and such other officers as may be from time to time
required for the prompt and orderly transaction of its business, to be elected
by the Board of Directors. The same person may hold any two or more offices,
and in any such case, these Bylaws shall be construed and understood
accordingly; provided that the same person may not hold the offices of Chairman
of the Board and Secretary or President and Secretary. The duties and
authorities of the officers of the Bank, other than those mentioned in these
Bylaws, shall be those usually pertaining to their respective offices, or as
may be designated by the Chairman of the Board, subject to the supervision and
direction of the Board of Directors.
Section 2. TERM OF OFFICE OF OFFICER-DIRECTORS. The Chairman of the Board,
the President and any Vice Chairman of the Board shall hold office for the
current year for which the Board of Directors of which they shall be members
was elected, unless they shall resign, become disqualified, or be removed; and
any vacancy occurring in any of such offices may be filled by the remaining
members of the Board of Directors.
Section 3. CHAIRMAN OF THE BOARD AND PRESIDENT. The Chairman of the Board
shall be the chief executive officer of the Bank, shall preside at meetings of
stockholders and directors, shall have general supervision and direction of the
business of the Bank, and perform such other duties as may be designated by the
Board of Directors. The President shall perform such duties as may be
designated by the Board of Directors and, in the event of the absence or
disability of the Chairman of the Board, shall have his powers and duties. The
Vice Chairman of the Board shall perform such duties as may be designated by
the Board of Directors.
Section 4. OFFICERS. All other officers shall be elected to hold their
respective offices at the pleasure of the Board of Directors of the Bank, and
shall have such duties, other than those mentioned herein, as shall be
prescribed by the Board of Directors.
Section 5. SECRETARY. The Secretary or Assistant Secretary or other officers
designated by the Board of Directors shall be responsible for stock books and
records, and other valuables of the Bank, and shall keep accurate minutes of
all meetings. The Secretary shall attend to the giving of all notices required
by these Bylaws to be given. He shall be custodian of the corporate seal,
records, documents and papers of the Bank. He shall provide for the keeping of
proper records of all transactions of the Bank. The Secretary, or Assistant
Secretary in his absence, shall have the power to sign indemnity agreements and
appoint agents by executing powers of attorney or such other similar documents
deemed necessary in the ordinary course of transacting the Bank's business. He
shall serve as Cashier, and he or his Deputy Cashiers shall have and may
exercise any and all other powers and duties pertaining by law, regulation or
practice, to the office of the Cashier, or imposed by these Bylaws. He shall
also perform such other duties as may be assigned to him, from time to time, by
the Board of Directors.
<PAGE> 13
Section 6. OFFICERS, EMPLOYEES AND AGENTS. All other officers, employees and
agents of this Bank shall be responsible for all such sums of money and
property of every kind as may be entrusted to their care or placed in their
hands by the Board of Directors, or otherwise come into their hands as
officers, employees or agents; and shall qualify under the bankers blanket bond
covering the bank officers and employees, approved as to type and amount from
year to year by the Board of Directors, conditioned for the honest and faithful
discharge of their duties as such officers, employees or agents, and that they
will faithfully and honestly apply and account for all sums of money and other
property of this Bank that may come into their hands as such officers,
employees or agents and pay over and deliver the same to the order of the Board
of Directors, or to any other person or persons authorized by the Board of
Directors to receive the same.
ARTICLE V
SEAL
The Board may adopt a seal of the Bank in any form including a raised
impression or a stamp bearing the name of the Bank and the city and state of
its principal place of business. The Secretary shall be the official custodian
of the seal and shall be responsible for the safekeeping and proper use
thereof. The seal shall not be used or affixed to any paper or document
whatsoever except by the Secretary or any Assistant Secretary, or such other
officers or employees of the Bank as may be authorized by the Secretary or any
Assistant Secretary to affix the seal.
ARTICLE VI
EXECUTION OF INSTRUMENTS
Section 1. CONVEYANCE OF REAL ESTATE. All transfers and conveyances of real
estate shall be made by the Bank, under seal, and shall be signed by the
President or any Vice President or any other officer, employee or agent of the
Bank as may be designated by the Secretary, and shall be attested by the
Secretary or any Assistant Secretary, or such other officer or employee of this
Bank as may be authorized by the Secretary to affix the seal.
Section 2. CONTRACTS. All contracts, checks, drafts, etc., shall be signed by
the Secretary, or any officer of the rank of Vice President or higher rank, or
any other officer or employee designated by the Secretary.
Section 3. ABSENCE OF RESOLUTION. No resolution of the Board of Directors
shall be necessary in order to authorize the execution, acknowledgement or
verification of any document by any officer who is authorized under these
Bylaws to do so, and he or she shall have full authority to act as if he or she
were duly authorized by resolution of the Board of Directors in each particular
case.
<PAGE> 14
ARTICLE VII
BANKING HOURS
The Bank shall be open for business upon such hours of each day of the
year as the Chief Executive Officer or his delegate shall from time to time
direct and the Chief Executive Officer or his delegate may, in his discretion,
prescribe different banking hours for different classes of business and
different banking hours for one or more branch offices, than prescribed for the
principal banking office.
ARTICLE VIII
MINUTE BOOK
The organization papers of this Bank, the returns of the judges of the
elections, the proceedings of all regular and special meetings of the Board of
Directors and of the stockholders, the Bylaws and any amendments thereto, and
reports of the committees of the Board of Directors shall be recorded in the
minute book and the minutes of each meeting shall be signed by the person
presiding at such meeting and attested by the Secretary.
ARTICLE IX
TRANSFERS OF STOCK
Section 1. TRANSFERS. The stock of this Bank shall be assignable and
transferable only on the books of this Bank, subject to the restrictions and
provisions of the law; and a transfer book shall be provided in which all
assignments and transfers of stock shall be made.
Section 2. RECORD DATE. The stock transfer books of the Bank shall not be
closed for the determination of stockholders entitled to dividends, but any
dividend can be made payable to stockholders of record on the date such
dividend is declared, or any subsequent date. The Bank shall be fully
protected in giving notices of meetings, paying dividends and doing such other
things as require a knowledge of the names of the stockholders of the Bank, in
relying upon the names of the stockholders as they appear upon the stock books
of the Bank.
Section 3. FORM AND ISSUANCE. Certificates of stock, bearing the manual or
facsimile signature of the Chairman of the Board, President or any Vice
President, and the Secretary, or the manual or facsimile signature of any two
of such other employees of the Bank as may be designated for such purpose from
time to time by resolution of the Board of Directors, and bearing the impressed
or facsimile seal of the Bank, may be issued to stockholders. The death,
resignation, discharge or incapacity of any person whose manual or facsimile
signature appears on any certificate, shall not affect the validity of such
certificate of stock, whether such certificate has theretofore or is thereafter
issued. All certificates of stock shall state upon the face thereof that the
stock is transferable only upon the books of the Bank; and when stock is
transferred, the certificates therefore shall be returned to the Bank,
canceled, preserved and new certificates issued.
<PAGE> 15
ARTICLE X
PROXIES AND CONSENTS
Proxies to vote and written consent with respect to shares of stock of
other corporations owned by or standing in the name of the Bank may be executed
and delivered from time to time on behalf of the Bank by two officers, one of
whom shall be the Chairman, President, Executive Vice President, Senior Vice
President or a Vice President and the other of whom shall be the Secretary or
an Assistant Secretary of the Bank; or by any other person or persons duly
authorized by the Board of Directors.
ARTICLE XI
TRUST DIVISION
Section 1. EXERCISE OF FIDUCIARY POWERS. All fiduciary powers of the Bank
shall be exercised through the Trust Division under the supervision of the
Trust Committee, subject to the Michigan Banking Code and subject to such
regulations as the Michigan Financial Institutions Bureau shall from time to
time establish. All books and records relating to fiduciary activities shall
be kept separate and distinct from the other books and records of the Bank.
Section 2. OFFICER IN CHARGE. The Trust Division shall be placed under the
management and immediate supervision of an officer in charge appointed by the
Board of Directors. The duties of such officer shall be to cause the policies
and instructions of the Board of Directors, the chief executive officer and the
Trust Committee, with respect to the fiduciary accounts entrusted to the Bank,
to be carried out, and to supervise the due performance of such accounts in
accordance with law and their terms.
Section 3. OTHER OFFICERS. Any other officer specifically appointed for the
performance of fiduciary activities shall exercise such powers and perform such
duties as are prescribed by these Bylaws, or as may be assigned to them by the
Board of Directors, the chief executive officer or the officer in charge of
fiduciary activities.
Section 4. SIGNATURE AND AUTHENTICATION OF INSTRUMENTS. All instruments in
which the Bank is named as Trustee or in any other fiduciary capacity and all
authentications or certificates by the Bank as Trustee under any mortgage, deed
of trust or other instrument securing bonds, debentures, notes or other
obligations of any individual, association or corporation, and all certificates
as Registrar or Transfer Agent and all certificates of deposit for stocks and
bonds, interim certificates, trust certificates and any other certificates,
document or instrument requiring execution may be signed or countersigned in
behalf of the Bank by any Trust Officer or officer of equal or higher rank
specifically elected or appointed for the performance of fiduciary duties or
the Secretary or any officer of the rank of Vice President or higher rank or by
any other person appointed for that purpose by the Board of Directors.
<PAGE> 16
Section 5. CUSTODY OF INVESTMENTS. The investments of each fiduciary account
shall be kept separate from the assets of the Bank, and shall be placed in the
joint custody or control of not less than two of the officers or employees of
the Bank designated for that purpose by the Board of Directors. All such
officers and employees shall be adequately bonded. The investments of each
such fiduciary account shall be either: kept separate from those of all other
accounts, except as provided under the regulations of the Michigan Financial
Institutions Bureau for collective investment, or adequately identified as the
property of the relevant account.
Section 6. TRUST COMMITTEE. There shall be a Trust Committee which shall be
composed of not less than five (5) members of the Board of Directors, at least
three (3) of whom shall be non-officer directors, and may include one or more
officers of the Bank who are not directors, appointed by the Board of Directors
to serve during its pleasure. The Trust Committee shall have general
supervision of and shall determine the policies relating to the administration
of fiduciary relationships. It shall have general supervision of the Trust
Division, the other committees to which the exercise of fiduciary powers of the
Bank are assigned, and the investment of funds and disposition of investments
held by the Bank in a fiduciary capacity. It shall have such other powers and
duties relating to the administration of fiduciary accounts entrusted to the
Bank as may be conferred upon it from time to time by the Board of Directors.
The Trust Committee shall meet at least once a month and shall keep minutes of
its meetings showing the disposition of all matters considered and passed upon,
and shall make monthly reports to the Board of Directors. Any three (3)
persons, each of whom is a member of the Trust Committee, of whom not less than
two (2) shall be nonofficer directors, shall constitute a quorum for the
transaction of business at any meeting of the Trust Committee.
ARTICLE XII
QUORUM
Except as otherwise provided by statute or in the Articles of Incorporation
or these Bylaws, a majority of all the stockholders or Directors, as the case
may be, shall be required to constitute a quorum to do business. Should there
be no quorum at any regular or special meeting of stockholders or Directors,
the stockholders or Directors present may adjourn from day to day until a
quorum is in attendance.
ARTICLE XIII
INDEMNIFICATION AND INSURANCE
The Bank shall indemnify and reimburse any director, officer, employee, or
agent to the fullest extent permitted by the laws of the State of Michigan, as
amended from time to time.
<PAGE> 17
ARTICLE XIV
AMENDMENTS TO BYLAWS
These Bylaws may be repealed, altered, or amended, in whole or in part, by
the vote of a majority of the Directors, at any regular or special meeting of
the Board of Directors.
CERTIFICATION
I, _________________________________, ________________________________ of NBD
Bank of Detroit, Michigan, certify that the foregoing is a true and exact copy
of the Articles of Incorporation and Bylaws of NBD Bank effective January 1,
1995.
IN WITNESS WHEREOF, I have executed this certification and caused the corporate
seal of the Bank to be affixed on _______________________, 19___ .
_________________________________________
<PAGE> 18
EXHIBIT D
---------
Charter No. 13671 Comptroller of the Currency District
REPORT OF CONDITION CONSOLIDATING
DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
NBD BANK
in the State of Michigan, at the close of business on December 31, 1995 pub-
lished in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C>
Cash and balances due from depository institutions
Noninterest-bearing balances and currency
and coin...................................................... 1,551,031
Interest-bearing balances..................................... 628,810
Securities:
Held-to-maturity securities................................... 0
Available-for-sale securities................................. 5,018,302
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold........................................ 595,150
Securities purchased under agreements to resell........... 146,401
Loans and lease financing receivables:
Loans and leases, net of unearned income........... 20,460,785
LESS: Allowance for loan and lease losses.......... 267,382
Loans and leases, net of unearned income and
allowance..................................................... 20,193,403
Assets held in trading accounts................................... 154,747
Premises and fixed assets (including
capitalized leases)........................................... 348,959
Other real estate owned........................................... 16,176
Investments in unconsolidated subsidiaries and
associated companies.......................................... -
Customers' liability to this bank on acceptances
outstanding................................................... 164,133
Intangible assets................................................. 38,024
Other assets...................................................... 606,503
---------------
Total assets...................................................... 29,461,639
===============
LIABILITIES
Deposits:
In domestic offices........................................... 16,450,184
Noninterest-bearing............................. 4,799,681
Interest-bearing............................... 11,650,503
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................................ 2,910,868
Noninterest-bearing................................ 67,313
Interest-bearing................................ 2,843,555
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased................................... 1,958,326
Securities sold under agreements to repurchase............ 243,869
Demand notes issued to the U.S. Treasury.......................... 162,376
Trading liabilities............................................... 75,745
Other borrowed money:
With original maturity of one year or less................ 2,377,209
With original maturity of more than one year.............. 1,564,618
Mortgage indebtedness and obligations
under capitalized leases...................................... 14,262
Bank's liability on acceptances executed and
outstanding................................................... 164,133
Notes and debentures subordinated to
deposits...................................................... 700,000
Other liabilities................................................. 566,318
---------------
Total liabilities................................................. 27,187,908
---------------
EQUITY CAPITAL
Common stock...................................................... 111,858
Surplus........................................................... 631,981
Undivided profits and capital reserves............................ 1,448,664
Net unrealized holding gains (losses) on available-for-sale
securities..................................................... 72,912
Cumulative foreign currency translation
adjustments................................................... 8,316
---------------
Total equity capital.............................................. 2,273,731
---------------
Total liabilities and equity capital.............................. 29,461,639
===============
</TABLE>
I, Jason N. Hansen, Vice President of the above-named bank do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
JASON N. HANSEN
January 25, 1996
We, the undersigned directors, attest to the correctness of this state-
ment of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in
conformance with the instructions and is true and correct.
THOMAS H. JEFFS II
JOHN E. LOBBIA
ALFRED R. GLANCY III
Directors
