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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): May 29, 1996
TRINOVA CORPORATION
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(Exact name of registrant as specified in its charter)
Ohio 1-924 34-4288310
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
3000 Strayer, Maumee, Ohio 43537
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (419) 867-2200
This document, including exhibits, contains 107 pages.
The cover page consists of 1 page.
The Exhibit Index is located on page 4.
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TRINOVA CORPORATION
Item 5. Other Events
In connection with its shelf registration on Form S-3 (No. 333-1709) of
debt securities in the aggregate principal amount of $175,000,000, TRINOVA
Corporation ("the Company") has entered into an Underwriting Agreement (the
"Underwriting Agreement") dated as of May 29, 1996 with Morgan Stanley & Co.
Incorporated and J.P. Morgan Securities Inc. (collectively, the "Underwriters").
Upon the terms and subject to the conditions contained in the Underwriting
Agreement, the Underwriters have agreed to purchase, and the Company has agreed
to sell 7.875% Notes Due June 1, 2026 in the aggregate principal amount of
$100,000,000 (the "Notes") to be issued under the Indenture (the "Indenture")
dated as of May 1, 1996 with NBD Bank, N.A. as trustee. Pursuant to the
Underwriting Agreement, the Notes are to be issued on June 3, 1996 or such other
date as the Company and the Underwriters may agree.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Business Acquired. None
(b) Pro Forma Financial Information. None
(c) Exhibits
The following exhibits are filed as part of this report:
(1) Underwriting Agreement
(4)-1 Form of Notes
(4)-2 Indenture
(12) Statement re computation of ratio of earnings to
fixed charges.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TRINOVA CORPORATION
/s/ James E. Kline
Date: June 3, 1996 By:____________________________________
James E. Kline
Vice President and General Counsel
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EXHIBIT INDEX
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Exhibit No.
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(1) Underwriting Agreement
(4)-1 Form of Notes
(4)-2 Indenture
(12) Statement re computation of ratio of earnings to fixed charges
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Exhibit (1)
TRINOVA CORPORATION
$100,000,000
7-7/8% DEBENTURES DUE JUNE 1, 2026
UNDERWRITING AGREEMENT
May 29, 1996
MORGAN STANLEY & CO. INCORPORATED
J.P. MORGAN SECURITIES INC.
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
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") $100,000,000 principal amount of its 7-7/8% Debentures Due June
1, 2026 (the "Securities"), to be issued under an indenture dated as of May 1,
1996 (the "Indenture") between the Company and NBD Bank, as trustee (the
"Trustee").
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 333-1709), 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
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pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The 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 20, 1996 is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement dated May 29, 1996 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 7-7/8% of the
principal amount thereof, plus accrued interest, if any, from June 1, 1996 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.
3. Payment for the Securities shall be made to the Company
or to its order by certified or official bank check or checks
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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;
(b) the documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
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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,
since January 1, 1996, 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 and authority to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified
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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 to 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 of 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 either 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 Incorporation or its Code of
Regulations or any indenture, mortgage, deed of trust, loan agreement
or other agreement
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or instrument to which the Company or either of the 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
the 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 either of the Subsidiaries is a
party or by which the Company or either of the Subsidiaries is bound or
to which any of the property or assets of the Company or either of the
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 either of the 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,
the 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 either of
the Subsidiaries is or may be a party or to which any property of the
Company or either of the 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 the Subsidiaries taken as a whole and, to
the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
and there are no contracts or other documents of a
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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 notification with respect to any suspension of
the qualification of the Securities for offer and sale in any
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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 earnings statement covering
a period of at least twelve months beginning with the first fiscal
quarter of the
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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 Closing
Date as if made on and as of the Closing Date and the Company shall
have complied with all agreements and
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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 under the Securities Act 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 the 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 the
Subsidiaries taken as a whole from that set forth or contemplated in
the Prospectus or setting forth any such change or development in
reasonable detail;
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(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 to 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 the 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 to 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 the 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 either of the Subsidiaries
is or may be a party or to which any property of the Company
or the Subsidiaries is or may be the subject which could
individually or in the aggregate reasonably be expected to
have a material adverse effect on the general affairs,
business,
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prospects, management, financial position, stockholders'
equity or results of operations of the Company and the
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 either 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 individually
or in the aggregate could 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 the
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 either of the
Subsidiaries is a party or by which the Company or either of
the Subsidiaries is bound or to which any of the property or
assets of the Company or either of the 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 either of the 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, the
Subsidiaries or any of their respective properties;
(vi) the statements incorporated by reference in the
Prospectus from Item 3 of Part 1 of the Company's Annual
Report on Form 10-K for the fiscal year ended December 31,
1995 and in the Registration Statement in Item 15, in so far
as such statements constitute a
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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 the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1995 (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 circumstances under
which they were made, not misleading;
(g) Jones, Day, Reavis & Pogue, counsel for the
Company, shall have furnished to the Underwriters, their
13
<PAGE> 14
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 Debentures" and "Description of Securities",
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 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
14
<PAGE> 15
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 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; and (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 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
15
<PAGE> 16
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 the 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 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
16
<PAGE> 17
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 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
17
<PAGE> 18
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 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
18
<PAGE> 19
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 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.
19
<PAGE> 20
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 this Agreement shall be terminated by the Underwriters, or either
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 Underwriter as has 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.
10. 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.
11. Any action by the Underwriters hereunder may be taken by the
Underwriters jointly or by Morgan Stanley & Co. Incorporated alone on behalf of
the Underwriters, and any such action taken by the Underwriters jointly or by
Morgan Stanley & Co. Incorporated alone shall be binding upon the Underwriters.
All notices and other communications hereunder shall be in
20
<PAGE> 21
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 c/o Morgan Stanley &
Co. Incorporated, 1585 Broadway, New York, New York 10036, Attention: Debt
Syndicate Department, Telecopier No. (212) 761-0785. 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.
12. 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: /s/ WILLIAM R. AMMANN
----------------------
Name: William R. Ammann
Title: Vice President-
Administration and
Treasurer
Accepted: May 29, 1996
MORGAN STANLEY & CO. INCORPORATED
J.P. MORGAN SECURITIES INC.
By: MORGAN STANLEY & CO. INCORPORATED
On behalf of each of the Underwriters
By: /S/ JENNIFER A. HARRIS
----------------------
Name: Jennifer A. Harris
Title: Vice President
21
<PAGE> 22
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount
Underwriter of Securities
----------- ----------------
<S> <C>
Morgan Stanley & Co. Incorporated........................ $ 50,000,000
J.P. Morgan Securities Inc............................... $ 50,000,000
Total.................................. $100,000,000
============
</TABLE>
22
<PAGE> 1
Exhibit (4)-1
REGISTERED REGISTERED
THIS DEBENTURE IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY") OR A NOMINEE
THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL DEBENTURES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS GLOBAL SECURITY 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 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.
TRINOVA CORPORATION
7-7/8% DEBENTURES DUE JUNE 1, 2026
CUSIP:
896 678 AD1
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
JUNE 3, 1996 $100,000,000
INTEREST RATE: MATURITY DATE:
7-7/8% June 1, 2026
TRINOVA CORPORATION, an Ohio corporation (hereinafter called the
"Company"), for value received hereby promises to pay to Cede & Co. or
registered assigns the principal sum of One Hundred Million Dollars
($100,000,000) on June 1, 2026, and to pay interest thereon from June 1, 1996 or
from the most recent Interest Payment Date to
<PAGE> 2
which interest has been paid or duly provided for in arrears, semiannually on
June 1 and December 1 of each year (each an "Interest Payment Date") commencing
December 1, 1996, at the rate of 7-7/8% per annum until the principal hereof
becomes due and payable, and at such rate on any overdue principal and (to the
extent that payment of such interest shall be legally enforceable) on any
overdue installment of interest. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date, will, as provided in the
Indenture dated as of May 1, 1996 between the Company and NBD Bank, as Trustee
(as amended or supplemented, the "Indenture"), be paid to the Holder in whose
name this Debenture is registered at the close of business on the Regular Record
Date for such Interest Payment Date, which shall be the May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holder on such Regular
Record Date by virtue of his or her having been such Holder, and shall be paid
to the Person in whose name this Debenture is registered at the close of
business on a subsequent record date for the payment of such interest to be
fixed by or on behalf of the Company, notice whereof shall be given to Holders
of Debentures not less than 15 days prior to such subsequent record date, all as
more fully provided in the Indenture. The principal of and interest on this
Debenture shall be paid by the Company in immediately available funds in
accordance with the written instructions provided by the Holder hereof to the
Company.
This Debenture is one of a duly authorized issue of securities of the
Company (the "Securities"), issued or to be issued in one or more series under
the Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of
2
<PAGE> 3
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Debentures and of the terms
upon which the Debentures are, and are to be, authenticated and delivered. This
Debenture is one of the series designated on the face hereof limited in
aggregate principal amount to $100,000,000. Interest payments for this Debenture
shall include interest accrued to, but excluding, the respective Interest
Payment Date and shall be computed and paid on the basis of a 360-day year of
twelve 30-day months. Any payment of principal of or interest on this Debenture
that is due on a date other than a Business Day shall be made on the next
succeeding Business Day and, in the case of timely payment thereof, the
computation of interest payable on such succeeding Business Day shall not
include any interest due between the scheduled payment date and such succeeding
Business Day.
The Debentures are not subject to redemption or any sinking fund.
If an Event of Default with respect to the Debentures shall have
occurred and be continuing, the principal of all of the Debentures may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than sixty-six and two-thirds percent in
aggregate principal amount of the Securities at the time outstanding of all
series to be affected (voting as one class). The Indenture also contains
provisions permitting the Holders of a specified percentage in aggregate
principal amount of the Securities of any series at the time outstanding, on
behalf of the Holders of all of the Securities of such series, to waive certain
past defaults by the Company under the Indenture and their consequences. Any
such
3
<PAGE> 4
consent or waiver by the Holder of this Debenture shall be conclusive and
binding upon such Holder and upon all future Holders of this Debenture and of
any Debenture issued upon the registration of transfer hereof for an exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Debenture.
Holders of Debentures may not enforce their rights pursuant to the
Indenture or the Debentures except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Debenture or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of (and premium, if any) and interest on
this Debenture at the times, place and rate, and in the coin or currency herein
prescribed.
Notwithstanding any other provision of the Indenture to the contrary,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form without coupons, this Global Security may not be
transferred except as a whole by the Depositary 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
or a nominee of such successor Depositary.
If at any time the Depositary for this Debenture notifies the Company
that it unwilling or unable to continue as Depositary for this Debenture or if
at any time the Depositary for this Debenture shall no longer be eligible under
the Indenture, the Company shall appoint a successor Depositary with respect to
this Debenture. If (i) the Depositary for this Debenture is at any time
unwilling or unable to continue as Depositary or the Depositary for this
Debenture of such series ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and a successor Depositary is not
appointed by the Company within
4
<PAGE> 5
90 days after the Company receives such notice or becomes aware of such
ineligibility or (ii) the Company executes and delivers to the Trustee an order
to the effect that the Debentures shall no longer be represented by a Global
Security, the Company's election that the Debentures be represented by Global
Securities shall no longer be effective with respect to the Debentures, and the
Company shall execute, and the Trustee, upon receipt of an order of the Company
for the authentication and delivery of definitive Debentures, shall authenticate
and deliver Debentures in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of this Global Security in exchange for this Global Security.
Upon the exchange of this Global Security for Debentures in definitive
registered form without coupons, in authorized denominations, this Global
Security shall be cancelled by the Trustee. Debentures in definitive registered
form without coupons issued in exchange for this Global Security pursuant to the
Indenture shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
the Debentures to or as directed by the persons in whose names such Securities
are so registered.
At the Company's option, and upon delivery by the Trustee of certain
officers' certificates and opinions of counsel, either (a) the Company will be
deemed to have paid and discharged all outstanding Securities of such series or
(b) the Company's obligations to comply with any term, provision, condition or
covenant specified at the time of issuance of the Debentures will be terminated,
in either case upon the deposit with the Trustee, in trust, of money sufficient
to pay and discharge the Debentures or a deposit of direct noncallable
obligations of, or noncallable obligations the payment of principal of and
interest on which is
5
<PAGE> 6
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 Debentures of such series.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Debenture for registration of
transfer or exchange, except as provided herein, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name this
Debenture is registered as the owner hereof for all purposes, whether or not
this Debenture be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been duly executed
by the Trustee by manual signature, this Debenture shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
6
<PAGE> 7
WITNESS the seal of the Company and the
signatures of its duly authorized officers.
TRINOVA CORPORATION
By /s/ Darryl F. Allen
----------------------------------
Darryl F. Allen
Chairman of the Board, President
and Chief Executive Officer
Attest:
(Seal) By /s/ David K Nees
----------------------------------
David K Nees
Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated and referred to in
the within-mentioned Indenture.
Dated: June 3, 1996
NBD BANK, as Trustee
By /s/ Vincent F. Caraktin
------------------------
Vice President
7
<PAGE> 8
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT
MIN ACT - _______ custodian ________
TEN ENT - as tenants by the entireties (cust) (Minor)
Under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common ______________________________________
State
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED the undersigned hereby sell(s)
assign(s) and transfer(s), unto
- --------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- --------------------------------------------------------------------------------
the within debenture and all rights thereunder, hereby irrevocably constituting
and appointing
___________________________________________________________________ attorney to
transfer said debenture on the books of the Company, with full power of
substitution in the premises.
Dated: ___________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument
in every particular, without alteration
or enlargement or any change whatever.
<PAGE> 1
Exhibit (4)-2
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TRINOVA CORPORATION
AND
NBD BANK,
TRUSTEE
------------------------
INDENTURE
DATED AS OF MAY 1, 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
<FN>
- ------------
*This Cross-Reference Sheet is not part of the Indenture.
</TABLE>
<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
<FN>
- ------------
*The Table of Contents is not part of the Indenture.
</TABLE>
<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
-----------
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
<S> <C> <C>
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.
<PAGE> 10
3
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
4
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
5
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
6
(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
7
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
8
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
9
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
10
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
11
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
14
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
15
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
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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
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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
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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
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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
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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.
<PAGE> 48
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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,
<PAGE> 49
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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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44
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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48
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
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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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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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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
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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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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:
<PAGE> 61
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
<PAGE> 62
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.
<PAGE> 64
57
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
58
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
<PAGE> 66
59
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: /s/ Darryl F. Allen
--------------------------------
Darryl F. Allen
Chairman of the Board,
President and Chief Executive
Officer
Attest:
/s/ David K. Nees
- ---------------------------------------------
NBD BANK
[Corporate Seal]
By: /s/ Joseph L. Weidenbach
--------------------------------
Joseph L. Weidenbach
Assistant Vice President
Attest:
/s/ Daniel T. Lis
- ---------------------------------------------
Senior Vice President and Secretary
<PAGE> 71
64
STATE OF OHIO SS.:
COUNTY OF
On the 29th day of May, 1996, before me personally came Darryl F. Allen, to
me known, who, being by me duly sworn, did depose and say that he resides at
4509 Woodhill, Toledo, OH, that he is the Chairman of the Board, President and
Chief Executive Officer 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]
/s/ Carol J. Keller
-------------------------------------
Carol J. Keller
Notary Public, State of Ohio
My Commission Expires Aug. 17, 1997
STATE OF MICHIGAN SS.:
COUNTY OF
On the 29th day of May, 1996, before me personally came Joseph L.
Weidenbach, to me known, who, being by me duly sworn, did depose and say that he
resides at 2617 N. Connecticut Ave., Royal Oak 48073, that he is an officer 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]
/s/ Amy J. Brehler
-------------------------------------
Amy J. Brehler
Notary Public, Wayne County, MI
My Commission Expires Aug. 24, 2000
<PAGE> 1
EXHIBIT (12)
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
----------------------
QTR.
ENDED
3/31 1995 1994 1993 1992 1991
-------- --------- -------- ------- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
Income (loss) before income taxes
and cumulative effect of
accounting change ............. $ 30,515 $ 128,196 $101,255 $17,111 $ 24,042 $(195,279)
Undistributed (income) loss of
unconsolidated affiliates ..... (181) (3,704) 1,213 1 (1,931) (58)
Fixed charges ................... 9,919 31,762 30,249 33,370 34,623 35,064
-------- --------- -------- ------- -------- ---------
Income (loss) before cumulative
effect of accounting change for
computation purposes .......... $ 40,253 $ 156,254 $132,717 $50,482 $ 56,734 $(160,273)
======== ========= ======== ======= ======== =========
Fixed Charges:
Interest expense, including
interest related to
corporate owned life
insurance ................... $ 8,135 $ 24,477 $ 22,582 $25,516 $ 26,313 $ 26,453
Portion of rent expense
representing interest ....... 1,694 6,903 7,303 7,490 7,987 8,370
Amortization of debt expense
and debt discount ........... 90 382 364 364 323 241
-------- --------- -------- ------- -------- ---------
Total fixed charges ............. $ 9,919 $ 31,762 $ 30,249 $33,370 $ 34,623 $ 35,064
======== ========= ======== ======= ======== =========
Ratio of earnings to fixed
charges ....................... 4.1x 4.9x 4.4x 1.5x 1.6x --
======== ========= ======== ======= ======== =========
</TABLE>
